Author: Andre Coleman

Title – ‘Discuss critically the current international legal position on the patentability of software and business method inventions’.

Introduction

As a general proposition, the speed at which a true global economy has been assembled over the past 20 years has been the dominant element in the re-ordering of international legal regulations concerning software and business method patents. The central premise of this paper is the that ability to regulate by patent the speed of scientific progress is akin to attempting to score a direct hit on a moving target.

This paper will examine the relationship between global economic forces and patentability, first from the United Kingdom perspective as an example of a national intellectual property protection system. The analysis will then be directed to the European Patent Convention and its regulatory framework, with a comparison drawn between the EPC and other regimes. The supranational patent enforcement structure provided by way of the World Trade Organisation is the final international aspect of the review.

These selected legal frameworks are not intended as an exhaustive summary of international patent law; they establish a useful basis against which the present question may be considered from commercial and public perspectives.

As the following review illustrates, international software and business method patent law is a mixture of legal theory, economic factors, and philosophical preferences regarding the control of ideas and related technologies. The international intellectual property legal order is not so much a finite system as it is a still-evolving organism where certainty of result and clarity of legal purpose are not settled.

Patents, software and business method inventions generally

The term ‘business method invention’ is a very broad and circumstance driven notion; it is often defined by what it is not, as opposed to what in fact it represents. As a general rule, business method inventions are any design that encompasses economic activities such as buying and selling items, marketing techniques, financial schemes (e.g. pension plan organisations) and gaming strategies.^[1]

In the European Union, the historical distinction between patentable and non-patentable inventions was the presence of a technical component in the design or system; business method inventions were therefore inherently non-patentable concepts in Europe.^[2]

Software is a similarly broad term that is capable of bearing several meanings. For the purpose of the present review, system software is any software required to support the production or execution of application programs but which is not specific to any particular application^[3]. Examples of system software would include a computer operating system^[4]. By contrast, application programs include Microsoft Excel© or computer assisted drawing (CAD) programmes; this software includes source code written by humans and executable machine code^[5]. Software does not usually include the data processed by programs unless the desired format depends on the use of computers for its presentation, such as multimedia^[6].

Patents and intellectual property protection turns on two fundamental principles, the territorial nature of the protection, and the extent to which a patent holder may permit others through licenses or other agreements to use the protected property. Given that patent law is not harmonised to any significant degree, patent protection is at best a variable and imperfect tool to promote rights associated with software and business inventions. ^[7]

As this analysis progresses, it is important to distinguish between the characteristics of patents and those of copyright. Copyright is the protection afforded to intellectual property regarding how an idea may be expressed or controlled. While copyright does not safeguard the idea itself, software copyright usually extends its coverage to the reproduction of software source codes. Patents are the legal protection granted by a country over an invention, its underlying methodology, or its function.

Patent law provides more comprehension protection that that available by copyright, licensing, or other any other safeguards that may be created by a contract over intellectual property. A patent is commercially desirable because as it establishes a legal monopoly over the protected property for the patent holder, adding value to the protected concept.

The American influence

A critical discussion of international software patent law that does not touch upon the American legal position is akin to not mentioning the proverbial white elephant seated at one’s dinner table. The United States Patent Office historically has been the busiest such institution in the world; American based companies initiate more patents world wide that any other business sector. The United States Supreme Court was the first to legalise software patents^[8] and the first major jurisdiction to give explicit recognition to the concept of the business method patent.^[9]

American influence has been important but not determinative in these areas; however, the American test for a business method invention patent as whether the subject concept leads to a ‘useful, concrete and tangible result’ is very influential.^[10] The American approach may be borne in mind as the UK, European, and World Trade Organisation positions are considered.

UK patents

Reflecting the biases of the first English patent law^[11], there was a long held reluctance in the UK to permit computer innovation patents. In the 1970s, as computer technology experienced incredible global growth, UK patents were restricted to industrial innovations, machinery, manufactured products, and tangible items.

Patents were not granted in the UK where the subject involved the mathematical expression of a scientific truth such as an algorithm.

Three recent UK patent law decisions are instructive in this regard. The most current and arguably the most important articulation of UK software patent law principles is Aerotel Ltd. v Telco Holdings Ltd.^[12] The Court of Appeal considered the deficiencies of both UK and European patent legislation in light of modern global commercial developments. The Court, through Jacobs LJ stated that it had no concern for the intense current political debates concerning software patents^[13], a statement that is difficult to accept at face value given the multinational nature of the case. However, the Court described the fundamental purpose for modern patent protection in clear and unambiguous language:

The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call “transaction costs”) is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories. Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such^[14].

The Court held that all (emphasis added) potential UK patents should be validated by a two part test expressed in the following terms:

First, determine what the inventor has contributed to the art over and above a computer operating in a new way as a matter of substance and, second, determine whether this contribution lies in excluded matter or, on the contrary, whether it consists in a technical contribution or effect.^[15]

Menashe Business Mercantile Ltd v. Hill ^[16]is an equally instructive 2002 decision of the Court of Appeal, as the reasons for judgement underscore the fluidity of modern computer based commercial applications and the difficulty to apply traditional enforcement methods, in the context of the relationship between UK and European community patent law. The plaintiff Menashe commenced an action seeking UK enforcement of a patent issued by the European Patent Office regarding his interactive gambling software. The defendant Hill claimed that as the host computer required to operate the software system was located outside of the UK, there could be no breach of the Menache patent. The Court held that in this case, jurisdiction over the patent ‘lay with the punter’^[17] – where gambling activities occurred by means of UK computer access, Hill violated the patent and the UK courts could enforce the patent.

The decision referenced as CFPH’s Applications, 2005^[18] is a useful summary of how the UK and European Patent offices approach both software patents and business inventions; the Court strikes a blow for pragmatism in its conclusion that there will likely never to be a comprehensive definition of ‘invention’.^[19] Accordingly, the court suggested that difference in the approaches of the UK and European patent offices should have little effect on how patents are enforced in most cases.^[20]

The complexity of each of the noted cases underscores an important barrier to enforcement – the current patent system serves only those who can afford to litigate a patent claim.

European Patent Convention (EPC)

The European Union is the second most active patent registration regime in the world. EPC Article 52(1) sets out the general rule: European patents will be granted for any inventions that include a ‘technical character’.^[21] Conversely, the patentability exclusions described in Article 52(2) include traditional business methods that have no invention or technical component. However, a number of concepts that combine technical and non-technical components have been approved for European patent, including an x-ray machine with a software component^[22] and other computer related devices.^[23]

The language of EPC Articles 52 and 53 when taken together has resulted in significant confusion with respect to the availability of software patents.^[24] The articles stated that ‘as such’ computer programmes are excluded from patentability, yet as of 2005 over 40,000 software –related patents had been granted by the EPO in a host of technology fields. When coupled with differing rules enacted in each of the EU member nations, software patent laws in Europe are decidedly ambiguous.^[25]

Europe has been an ideological battleground pitting commercial software developers against the advocates of Open Source Software (OSS)^[26] over the question of whether software should be patented at all. The OSS proponents (a world wide constituency) regard software patent laws as an inhibition to true technological progress. In July, 2005 the European Parliament rejected a legislative proposal that would have expanded the ability of software developers to obtain patent protection for their inventions. Given the size and influence of the European market, the European rejection of tighter software patents may be an indicator of a larger global trend to make software generally more accessible and conversely, less amenable to patent protection..

Since 1977, patents issued by the European Patent Office have enforceable through the patent legislation of member countries; Menashe^[27] is an example. EPC Article 64 provides that the national law is the only enforcement mechanism for an alleged patent violation. It is submitted that without harmonised European enforcement, a truly effective patent system is impossible; given the importance of software development, the persistence of the present system suggests that the software industry is not entirely troubled by the patchwork European law in this regard. This European legislative deficiency mirrors those of the global software and business method patent arena.

World Trade Organisation (WTO)

With more than 150 member countries and a host of trade agreements and protocols that touch upon wide areas of international commerce, the WTO occupies a position of apparent importance in international software patent regulation. The foundation WTO initiative is TRIPS^[28], the Trade Related Aspects of Intellectual Property Rights, ratified January 1, 1995.

TRIPS is an initiative that represents the culmination of a series of multi-lateral intellectual property agreements concluded by the WTO membership. TRIPS has been heralded as the blueprint for handling international intellectual property disputes.

In light of the European developments noted above, coupled with the resounding failure of earlier WTO initiatives^[29], it is exceedingly doubtful that TRIPS will become an accepted software patent legislation standard.

The ability of the WTO to enforce TRIPS must also be considered in light of how modern international commercial forces are often transnational entities and not the traditional nation state.^[30] No significant enforcement action has been successfully undertaken pursuant to the TRIPS protocols since its enactment.

What the future holds

It is submitted that the current state of international software and business method patents is a natural consequence of the speed that underlies both the function of the global economy and technological development. A coherent and enforceable international patent structure may be laudable, but the speed and inherent flexibility of innovation operating independent of any government restriction appears to have spawned a new world order where rules exist as guidelines only. As Europe and the WTO struggle to resolve the patentability of “simple” computer software applications, science is relentlessly forged ahead with biotechnical and genetic software questions^[31] that will pose even more perplexing regulatory issues.

Bibliography

Beresford, Keith “Patenting Software under the European Patent Convention” (London: Sweet & Maxwell, 2003)

Boyle, James “Fencing off ideas: enclosure & the disappearance of the public domain” (2002) Daedalus Vol. 131,

Cahill, Lisa Sowle “Biotech & Justice: Catching up with the New World Order” (2003) The Hastings Center Report Vol. 33, 1

Caulder, Isis E. “Patenting Software – The Standards in U.S., Europe, Japan and Canada” http://www.bereskinparr.com/English/publications/pdf/Patent-Six-Minute-IP.pdf (Accessed January 28, 2007)

FOLDOC (Free On-Line Dictionary of Computers), Imperial College http://foldoc.org/index.cgi?query=software (Accessed January 28, 2007)

Guadamusz, Andres “Open Science: Open Source Software Licenses and Scientific Research” BILETA April, 2005

Ius Mentis http://www.iusmentis.com/patents/businessmethods/epc/ (Accessed January 28, 2007)

Lerner, Paul and Alexander Poltorak “Essentials of Intellectual Property” (New York: Wiley, 2002)

Raymond, Eric “The New Hacker’s Dictionary” (Cambridge, Mass: MIT Press, 1991)

World Trade Organisation / Trade Related Aspects of Intellectual Property Rights (TRIPS) http://www.wto.org/english/tratop_e/trips_e/trips_e.htm (accessed January 28, 2007)

Table of Cases

Aerotel Ltd. v Telco Holdings Ltd. [2006] EWCA Civ 1371

CFPH’s Appns [2005] EWHC 1589 (Pat)

Commissioner of Patents v. Harvard College [2002] SCC 77 (S.C.C.),

Computer-Related Invention/Vicom, Decision T 208/84 EPO (OJ 1987, 14)

Diamind v Diehr (1981) 450 U.S. 175

Koch & Sterzel, Decision T 26/86 EPO (OJ 1988, 19)

Menashe Business Mercantile Ltd v Hill [2002] EWCA Civ 1702

State Street Bank and Trust v Signature Financial Group (1998)149 F.3d 1368 (Fed. C. A.)

Table of Statutes

European Patent Convention

UK Patent Rules, 1995

UK Patent Act, 1977

WTO / Trade Related Aspects of Intellectual Property

1

Triangulation – Qualitative Analysis

Triangulation is often used in qualitative methodology to increase the validity of findings, but it is not a panacea. Using British examples in the police and public sector, discuss the meaning of the term triangulation, how it can be used in qualitative research and its limitations and potential.

Abstract

This paper focuses on the use of triangulation within qualitative research using examples from British public sector and more specifically, police research. Qualitative research approaches have been increasingly used within public sector research. Different types of triangulation are explained and the relevance of each type is identified. The purpose of using triangulation within qualitative research; which is to increase validity, is critically discussed. Different types of validity are explained, as well as the significance of the concept of validity to research. Quantitative and qualitative research approaches are critically compared. The use of qualitative approaches within public sector research is defended, and the positivist perspective is challenged by arguing that the use of triangulation can strengthen the validity of qualitative research methodology. Using three examples of public sector research, some advantages and potential limitations of using triangulation within this area are identified. Several examples of police research studies that have adopted the use of triangulation as part of a qualitative approach are critically discussed with reference to different types of triangulation and their relationship to different types of validity. A synthesis of the issues that emerge from the selected police research studies in relation to triangulation is included. The paper concludes that while there are potential limitations associated with the use of triangulation within qualitative research, the cited examples of public sector and police research demonstrate that there are also several potential advantages and that triangulation can contribute to the validity of qualitative research in these domains. It is important to acknowledge that the application or the omission of different types of triangulation within a research study can correspond to its strengths and weaknesses, and there is an implication for the researcher to be knowledgeable and skilled in the use of triangulation in order to optimise its application within qualitative research. In other words, the limitations of triangulation might relate to the way that it is implemented rather than to the strategy itself.

Introduction

The purpose of this paper is to critically examine the use of triangulation within qualitative methodology as a means of increasing the validity of findings, with reference to research examples from the police and other public sector areas.

Triangulation, Validity and Qualitative Research

In simple terms, triangulation refers to the examination of a situation from different perspectives, using different methods (Laws et al 2003). Triangulation is often referred to as the use of mixed methods within research, however Denzin and Lincoln (2000) developed this concept further to include four different types: data triangulation, which refers to the use of a variety of sources of data within a study; investigator triangulation which involves several researchers; theory triangulation, which uses multiple perspectives to interpret a single set of data and methodological triangulation which involves the use of multiple methods to study a single problem. Data triangulation is commonly used within qualitative research as it facilitates understanding of the complexity of a poorly understood phenomenon, an example being the combination of holding in- depth discussions with participants and observing their behaviour within a natural setting (Polit and Beck 2004). Investigator triangulation can help to overcome the potential problem of personal bias (Sim and Wright 2000). The advantage of using methodological triangulation is that it helps to resolve the limitations that single methods have in studying the complexity of social reality (Kendall 2005).

Frequently triangulation involves the use of both quantitative and qualitative methods, the rationale being that the strengths of each are optimised (Flick 2006). This paper however, will focus on the use of triangulation exclusively within qualitative methodology. The purpose of using triangulation within qualitative research is to add rigour, depth, breadth, complexity and richness to the research process (Denzin and Lincoln 2003a).

The use of triangulation within qualitative research is therefore, said to increase validity (Giles 2002). The term validity is often referred to as the ability of a research instrument to measure what it is intended to do (De Vaus 2002). There are however, different types of validity; internal validity, which asks whether researchers are actually measuring what they think they are; external validity which relates to the generalisability of the findings of a study to other settings; interpretive validity which is concerned with the accurate understanding and portrayal of data; theoretical validity which relates to the appropriateness of theory that emerges from the data and evaluative validity which refers to the quality of the research process, in relation to the actions of the researcher. Overall, within qualitative research; validity relates to the trustworthiness of the data, its analysis and its interpretation (Waltz et al 2005). Holloway and Wheeler (2002) however, suggest that triangulation does not always confer validity; that this is dependent on the nature of the individual research project and that only researchers who are experienced should use triangulation within qualitative research.

Qualitative research approaches seek to understand the meaning of phenomena (Patton 2002a). They aim to represent the true complexities of human behaviour, gaining access to thoughts and feelings that cannot be accessed by using other methods Flanagan 2005). Quantitative research on the other hand, has been criticised for its reductionist approach towards the human experience; it has the ability to produce results which are statistically significant yet humanly insignificant. Qualitative research methods include interviews, observations and document analysis. The qualitative researcher tends to engage more with the research participants and aims to address any associated criticism of the potential for subjectivity by the application of rigorous and systematic methods of data collection and analysis.

Qualitative research approaches have increasingly been used in public sector research within the UK, for example within the health care domain, where they have helped to enhance understanding of health, health behaviours and health services (Green and Thorogood 2004). There are also several examples cited within the literature, of qualitative methodology being used in police service research. (for example: Cassell and Symon 2004; Dick 2000; Dick and Jankowicz 2001; Dorn and Brown 2003; Noaks and Wincup 2004; Office for Public Management 2006).

Triangulation in Public Sector Research

Qualitative research methodology is often employed within the public sector because of the ‘people factor’; public sector organisations such as the police, health and social services and local councils employ large numbers of personnel (Grant and Vidler 2000), added to which these are helping organisations that provide a human service. Qualitative research is described as a naturalistic, interpretative approach that is concerned with understanding the meanings which people attach to phenomena within their social worlds (Ritchie and Lewis 2003). As stated previously, it is very much concerned with human behaviour, experiences, values and beliefs. It does however attract criticism from positivists in terms of not being valued as a scientific approach (Haslam and McGarty 2003). Positivism adopts the position that the purpose of science is to limit research activity to what can be directly observed and measured; that aspects such as feelings, attitudes and beliefs cannot be directly observed and measured and are not therefore, legitimate areas for scientific investigation (Trochim 2006). As previously stated, the implications of this are that there are huge areas within the human experience that would not warrant investigation within the quantitative paradigm. The purpose of triangulation within qualitative research is to challenge the criticism that this is not a scientific approach, by combining multiple observers, theories, methods and data sources in order to overcome the intrinsic bias that arises from single- methods, single observer and single- theory studies (Patton 2002b). There now follows an overview of three public sector research studies that have employed triangulation in order to demonstrate the effectiveness of this approach.

McAdam et al (2002) used data triangulation of qualitative methodology to investigate how the principles of total quality management (TQM) are being sustained in the UK public sector by contributing to improved performance levels. The research methodologies included focus groups and semi-structured interviews. Using triangulation served to strengthen their finding which was that quality frameworks play a key role in improving organisational performance over time.

A study by Atwal and Caldwell (2006) aimed to explore nurses’ perceptions of multidisciplinary teamwork in acute health-care. In order to do so, they adopted methodological triangulation by conducting interviews and direct observations of interactions between nurses and health-care professionals in multidisciplinary teams. The findings of this study identified three barriers that hindered teamwork: differing perceptions of teamwork; different levels of skills acquisitions to function as a team member; and the dominance of medical power that influenced interaction in teams. The combination of interview with observation in qualitative research is becoming increasingly popular (Ekstrom 2004).

A study by Bryans (2004) aimed to articulate the health visiting expertise involved in recognizing and responding to client need during home visits. The researcher adopted what she describes as an innovative, multi-method approach used to articulate this expertise which involved a 20-minute simulated visit to an actress-client, a post- simulation focused interview and subsequent observation of actual home visits with 15 study participants. The researcher identified the strength of this approach as providing a blend of control and naturalism and considers that this approach could usefully be applied within multidisciplinary contexts. The researcher also acknowledged the limitations of the approach as arising from the variability of naturally-occurring, observational data which meant that simulation and observational data were not directly comparable in terms of content in a study of this type. Comparability of observational and simulation data, and the reliability of the observational data, were also diminished by the use of different methods of data-gathering.

These studies collectively demonstrate that the use of triangulation within qualitative research can strengthen its findings; a potential limitation is that it may not be easy to make dependable comparisons between two sets of data due to differences in the ways that the data was collected.

Triangulation in Police Research

A review of the literature reveals that qualitative research approaches have been employed within police research involving the use of triangulation for some time.

An interesting example of the use of triangulation within police research are studies that highlight discrepancies between information given about experiences of crime to the police by comparing this data obtained by other means, for example by using interviews conducted by external researchers (Bechhofer and Paterson 2000a). In other words, a more accurate picture can be gained by the use of triangulation. The same authors refer also to the use of qualitative research and multiple methodologies in order to obtain information about peoples’ perceptions about crime; for example relating to their fear of crime. This information might otherwise be inaccessible. It is possible that the use of triangulation within police research could be effective in dealing with information of a sensitive nature.

Lee (2000a) makes reference to a study conducted by Norris et al in 1992 that demonstrated how the use of different methodologies can highlight the difference between perceptions held about, and the reality of, a situation. In this instance observations were made of the demeanour of police officers and citizens in situations where citizens were stopped by the police. During an encounter, blacks and whites were equally likely to present a calm and civil demeanour towards the police. There were also few differences in police demeanour and action towards the two groups. These findings did not support competing claims (i.e. derived from other sources of information) that the police are overtly hostile to blacks, or that blacks display disrespectful attitudes towards the police.

Devine and Heath (1999) provide a critique of an ethnographic study conducted by Hobbs in 1988, of petty criminals and local CID detectives working in the East End of London. The ethnographic research consisted of both overt and covert participant observation of both the criminals and the police in a variety of different settings. The researcher was able therefore to gain a variety of sources of data which contributed to what is described by Devine and Heath as the ‘richness of his ethnography’ (p.8). However they also consider that the study would have benefited from investigator triangulation in order to overcome the problem of bias. They felt that this would have led to a more accurate picture of malpractice within the Metropolitan CID. An identified limitation of participant observation is that the researcher can become biased in favour of the group or indeed against them (Moore 2001). A study of this kind is also unlikely to have external validity; as being an ethnographic study; it is very much informed by the uniqueness of its social and cultural context.

The last two studies demonstrate the value of observation as a research method particularly as a component of triangulation. The advantages of observation are as follows: the researcher can observe interaction within a group as well as gain information from people individually via interviews, as the dynamics of a group might influence the nature of communication between its members; the researcher might gain a more objective view of a situation than a research participant who is likely to be immersed in their social world and may not as a result, identify aspects which are of interest to the researcher. Observation also enables the researcher to observe actions, which can be more meaningful in some ways than verbal communication (Weinberg 2001).

The value of investigator triangulation is highlighted in a second study cited by Lee (2000b). This also looked at police- citizen interaction using multiple observers from different backgrounds. Data triangulation was also employed as the observers were asked to collect data in two forms, one on a checklist; the other as a narrative account. The two sources of data were then compared. The use of multiple observers should help to overcome the potential problem of personal bias that was said to arise from the Hobbs study.

A study by Knock (2002) drew on the findings of a telephone survey of all police forces in England and Wales and interviews with key personnel in 16 police forces to gain information about the use of Sex Offender Orders (SOOs) which came into force in 1998; the aim of these being to provide an additional measure of protection to the public from sex offenders by prohibiting an offender from certain behaviours that had previously been precursors to offending. It was found that the pattern of SOO applications is not uniformly distributed across the country. The researcher commented that the low uptake of SOOs by some forces needs to be carefully interpreted. The use of triangulation allowed for the underlying reasons for low uptake to be identified. These included a general lack of understanding about the SOO process and concerns about inadequate resources for monitoring the Order; this information being gained via the interviews. Furthermore, some forces identified that other strategies for managing sex offenders without resorting to an Order were considered to be adequate; others had negotiated voluntary agreements with offenders in order to modify their behaviour. The relevance of this study in relation to triangulation is that the ‘first level’ of presenting information could be misleading; the use of more than one methodology facilitated a deeper level of understanding about the variation in applying the SOOs. As with all qualitative research methods, there are advantages and disadvantages associated with the use of telephone interviews. It may be possible for the researcher to enter responses directly onto a computer which could increase time efficiency and accuracy of recording. Respondents might find it easier to respond to questions of a sensitive nature when they are not face- to- face with the interviewer. The disadvantages include a lower response rate than for face- to- face interviews, which reduces further when longer telephone interviews are required (Pocock 2000). It is also not possible to observe non- verbal aspects of communication. The use of triangulation therefore, helps to overcome the disadvantages of a single research method. The identified weaknesses of the telephone interview are all aspects which could be compensated for by the additional use of face-to- face interviews. Conversely, the strengths of the telephone interview should help to overcome the limitations of the face- to- face interview.

Pain et al (2002) carried out research commissioned by the Home Office to produce a Police Research Series paper which examined homeless and school- excluded young people’s experience of crime and disorder; the rationale being that they had previously been poorly represented in consultation. The need to adopt a qualitative approach for this study was emphasised by the researchers, in order that the young people’s attitudes, experiences and understanding of crime could be explored in depth. The participants were invited to develop a range of visual materials, and observations and informal discussion were also used by the researchers. Findings included that there are negative outcomes of the vicious circle created by being labelled as either homeless or as troublemakers at school; that most of the crimes committed by the homeless young people are petty and victimless, such as begging; that the homeless feel most at risk in spaces where control can be exerted over them, such as within the home or in dealings with the police and as a result they actually feel safer on the streets; that crime and homelessness are two factors which are correlated; that school- excluded young people are more likely to be involved in crime, most of which is petty but some of which is serious; that school- excluded young people often feel victimised and have been bullied, some have been the victims of abuse within the home and others have been exposed to crime previously as non- offenders.

The researchers highlight the benefits of participatory research approaches as enabling the young people to be involved in the process of research and strategy development, at the same time allowing their interests to be promoted. In other words, they are being empowered. The researchers also acknowledge the limitations of participatory research methods, which are not specified within this research report but which have been identified elsewhere as being time intensive; as having been criticised as involving reduced scientific rigour and that the researchers’ control over the project could be compromised (Arble and Moberg 2006). The researchers comment that the limitations of participatory methods could impact upon the effectiveness of their use as a basis for action. Triangulation involving informal discussion and observation in addition to the participatory methods therefore is a strategy which was used in this instance to overcome the potential limitations of the latter, thus increasing the validity of the research process and the interpretation and application of the data. This is a very interesting study which has revealed some powerful insights into the issues affecting an otherwise disenfranchised group, drawing upon their unique perspectives. Some of the findings are surprising and challenge widely held assumptions and negative perceptions held about homeless young people; that are reflected in the lack of resources, support and appropriate accommodation available for this group (Dean 2006). The impact of such a study could be therefore, to contribute towards improved service delivery for homeless and school- excluded young people. It could be argued that triangulation is a powerful strategy that adds credibility to a study of this kind, which in turn could have an impact on improving the lives of otherwise disempowered and misunderstood groups of young people.

In summary, there are several examples within the literature of qualitative approaches adopted within police research which employ triangulation. A synthesis of the issues relating to the use of triangulation in this specific area of work is as follows: triangulation can help to address sensitive issues within police research that might not be effectively dealt with using a single method; triangulation can highlight discrepancies between data obtained as a result of using different sources and methods, which could also be interpreted as a limitation of triangulation, in that it could lead to data from different sources not being directly comparable; it enables the subjective perceptions of participants (and therefore those who may be affected by the outcomes of research studies) to be taken into consideration, in addition to the more objective observations of researchers, this allows for participants to be empowered and to potentially have some influence over the development of strategy which results from the research process; triangulation potentially allows for the use of multiple researchers, multiple settings, multiple sources and multiple methods to be used within police research; the use of multiple methods enables the strengths to overcome the limitations of each method; triangulation facilitates different levels of research investigation to be carried out, for example underlying reasons for the findings emerging from the use of one method can be identified by the use of an alternative approach, thereby contributing to the depth, breadth, complexity and richness of the research process (Denzin and Lincoln 2003b) and triangulation could add to the credibility of a research study which in turn could impact upon changes being made to improve service provision.

Conclusion

Robson (2002) agrees with the statement within the question; i.e. that triangulation is not a panacea. It can be problematic, for example when two data sources are inconsistent or conflicting. Further investigation might lead to an even more complex set of understandings. Kirby (2000) agrees that while triangulation is used to overcome the problems associated with using one research method, it does not eliminate these problems, but disguises them by compensating for the weaknesses of one method with the strengths of another. Triangulation is not a unified overall methodology; it is a way of using complementary methods. Coleman and Briggs (2002) argue that while triangulation contributes to validity, it is not a panacea and that its value can be overestimated. Bechhofer and Paterson (2000b) suggest that there are weak and strong forms of triangulation. They describe a weak form as making multiple observations of a situation using the same method and a strong form as making several observations using different methods.

Despite these identified limitations of triangulation, examples cited within this paper from public sector and specifically, police research indicate that there are several potential ways in which it can contribute to the validity of the qualitative research process. The advantage of using qualitative methods within public sector and police research has been identified here as enabling the human experience to be valued and investigated. Potential limitations of qualitative research methods can be overcome by the use of triangulation as the strengths of each individual method can compensate for the weaknesses of others. Finally it is important to acknowledge that the appropriate skills of the researcher can contribute towards the quality of a mixed- methods study and that it might be necessary to involve two or more researchers who have complementary research skills in order to optimise the benefits of using triangulation within qualitative research (Tashakkori and Teddlie 2003).

References

Arble B and Moberg D. Participatory Research in Development of Public health Interventions. Population Health Institute. 2006. p. 3.

Atwal A and Caldwell K. Nurses’ perceptions of multidisciplinary team work in acute health-care. International Journal of Nursing Practice. 12(6) 2006 pp.359-365

Bechhofer F and Paterson L. Principles of Research Design in the Social Sciences. Routledge. 2000. p. 58.

Bryans A. Examining health visiting expertise: combining simulation, interview and observation. Journal of Advanced Nursing. 47(6) 2004 pp.623-630,

Cassell C and Symon G. Essential Guide to Qualitative Methods in Organizational Research. Sage Publications. 2004. p. 316.

Coleman and Briggs. Research Methods in Educational Leadership and Management. Sage publications. 2002. p. 70.

Dean H. Social Policy. Polity Press. 2006. p. 99

Denzin N and Lincoln Y. Handbook of Qualitative Research. Sage Publications. 2000. p. 391.

Denzin N and Lincoln Y Collecting and Interpreting Qualitative Materials. Sage Publications. 2003. p. 8.

De Vaus D. Surveys in Social Research. Routledge. 2002. p. 53.

Devine F and Heath S. Sociological Research methods in Context. Macmillan. 1999. p. 8.

Dick, P. The social construction of meaning of acute stressors: a qualitative study of the personal accounts of police officers using a stress counselling service, Work & Stress, 14 (3) 2000. pp.226-244.

Dick P. and Jankowicz D social constructionist account of police culture and its influence on the representation and progression of female officers: A repertory grid analysis in a UK police force. Policing: An International Journal of Police Strategies and Management, 24 (2) 2001. pp. 181-199.

Dorn L and Brown B, Making sense of invulnerability at work: a qualitative study of police drivers. Safety Science, 41(10) 2003 pp.837-859.

Ekstrom K. Elusive Consumption. Berg Publishers. 2004. p. 57.

Flanagan C. Research Methods for AQA ‘A’ Psychology. Nelson Thornes. 2005. p. 46.

Flick U An Introduction to Qualitative Research. Sage Publications. 2006. p. 33

Giles D Advanced Research Methods in Psychology. Routledge. 2002. pp. 220-1

Grant S and Vidler C. Economics in Context. Harcourt Heinemann. 2000. p. 64.

Green and Thorogood. Qualitative Methods for Health Research. Sage Publications. 2004. p. 4.

Haslam S and McGarty C. Research Methods and Statistics in Psychology. Sage Publications. 2003. p. 389.

Holloway I and Wheeler S. Qualitative Research in Nursing. Blackwell publishing. 2002. p. 2.

Kendall D. Sociology In Our Times. Thomson Wadsworth. 2007. p. 67.

Kirby M. Sociology in Perspective. Harcourt Heinemann. 2000. p. 9.

Knock K. The Police Perspective on Sex offender Orders: A preliminary view of policy and practice. Policing and Reducing Crime Unit: Police Research Unit. 2002.

Laws S , Harper C and Marcus R. Research for Development: A Practical Guide. Sage Publications. 2003. p. 280.

Lee R. Unobtrusive Methods in Social research. Open University Press. 2000. p. 37, 48

McAdam R, Reid R and Saulters R Sustaining quality in the UK public sector: Quality measurement frameworks. International Journal of Quality & Reliability Management. 19(5). 2002. pp. 581 – 595

Moore S. Sociology Alive!Nelson Thornes. 2001. p. 34

Noaks L and Wincup E. Criminological Research: Understanding Qualitative Methods. Sage Publications. 2004. p. 101.

Office for Public Management. Metropolitan Police Authority and the Metropolitan Police Service. Safer London Panel. Communication Matters. OPM. 2006.

Pain R, Francis P, Fuller I, O’Brien K and Williams S. ‘Hard- to- Reach’ Young People and Community Safety: a model for participatory research and consultation. Police research Series paper 152. Home Office 2002.

Patton M. Qualitative Research & Evaluation Methods. Sage Publications. 2002. pp. 1, 555.

Pocock R. Market Research in Health and Social Care. Routledge. 2000. p. 100.

Polit D and Beck C. Nursing Research: Principles and Methods. Lippincott Williams and Wilkins. 2004. p. 36.

Ritchie J and Lewis J. Qualitative Research Practice: a guide for social science students and researchers. Sage Publications. 2003. p. 3.

Robson C. Real World Research: A Resource for Social Scientists and Practitioner-Researchers. Blackwell publishing. 2002. p.483.

Sim J and Wright C Research in Health Care: Concepts, Designs and Methods. Nelson Thornes 2000. p. 137.

Tashakkori A and Teddlie C. Handbook of Mixed Methods in Social & Behavioural Research. Sage Publications. 2003. p. 553.

Trochim W. Positivism & Post-Positivism. Research methods Knowledge Base. Web Centre for Social research Methods. 2006. http://www.socialresearchmethods.net/kb/positvsm.php. Accessed 10th March 2007.

Waltz C, Strickland O and Lenz E. Measurement In Nursing And Health Research. Springer Publishing. 2005. p. 217.

Weinberg D. Qualitative Research Methods. Blackwell Publishing. 2001. p. 135.

Through a detailed analysis of ‘A Rake’s Progress’, and considering both form and function, discuss how Hogarth’s work was affected by the transition from one medium to another.

The Rake’s Progress is the only work by Hogarth in which we can compare his skills and method of approaching painting with his engraving, as both versions still exist and indeed, the engravings appear as though the greatest amount of care and attention had gone into their composition. The Rake’s Progress can be read as a satire of the traditional romantic progression, as the central character of the work, Tom Rakewell, the son of a rich merchant, comes to London, spends all of his father’s money on gambling and whoring, is imprisoned and eventually is put into Bedlam, the mental asylum. The overall tone, however, is not one of tragedy, but of black and satiric comedy. Hogarth uses a variety of narrative and symbolic pictorial devices to achieve this effect, and it is the main way in which the original paintings of the Rake’s Progress differs in the way it is expressed in each medium.

Hogarth’s copyright act of 1735 in many ways marked a change in the economics of the artistic scene in Britain at the time. Because the ownership of engravings and paintings remained in the possession of the artist, the artist could find it easier to appeal to the sensibilities of the middle classes rather than an aristocratic patron. Waterhouse (1953) comments that “In 1735 Hogarth’s copyright act, immediately followed by his engravings of ‘The Rake’s Progress’ marks a step forward in the artist’s status” (p. 125). This development contributed to generating an environment in which a challenging satirical piece such as “The Rake’s Progress” could be disseminated on a more democratic basis, utilising the technologies of mass production and print making while simultaneously making money for the artist and not forbearing the copyright of the materials by publishing the material. This had the effect of both changing the market from rich patrons and churches, to a prosperous middle class, and subsequently this had an impact on the morality and the themes of “The Rake’s Progress.” It was likely therefore, that Hogarth decided to put considerably more time into creating the engravings of “The Rake’s Progress” rather than concentrating on the grander, colourful spectacle of the paintings. For financial reasons, the printed versions of “The Rake’s Progress”, its subject matter and tone something which the middle-classes would be more likely to empathise with or endorse, should be regarded as the central work, rather than the paintings. Waterhouse (1953) comments that the painterly quality of “The Rake’s Progress” was “extremely uneven.” He continues by saying: “At times it reaches the highest degree of exquisite paint and at others it is merely perfunctory” (p. 130). The reasons behind this were purely economic. In combination with the copyright act passed through Parliament, which allowed for artists to support themselves economically more easily without relying on painting for rich patrons or the establishment, along with the development of printing technologies that allowed a cheaper dissemination of works to the affluent middle-classes, Hogarth presumed that it was likely that a single painting on this subject, and with this thematic quality would sell as well regardless of the amount of time put into it.

The technical limits of engraving and painting are brought into stark relief by the differences between Hogarth’s paintings and his engravings. Engraving allowed the artist to work in a more literary fashion: instead of having to sell the pictures separately and as artefacts that worked on their own merits, the engraving medium allowed for the printing of successive pieces, which encouraged a more “literary” style to develop, and which took into greater account the symbolic and narrative threads of previous works. “The Rake’s Progress” is exemplary in how these themes develop over the course of the eight prints. There are a number of themes that echo throughout the engravings that are absent in the paintings. In Plate Three, the orgy scene in which Tom spends and is robbed of all of his father’s money, the woman in the background attempts to set fire to a map of the world. This arson is developed further in the second scene (Plate 6) depicting hedonism in the drinking house, which actually depicts a fire. There are various other parallels in these two scenes that are lost in the paintings. While Plate 3 depicts female prostitutes and opportunists who steal and rob Tom of his wealth, Plate 6 depicts a similar scene, but with men instead. This balances the portrayal of gender in the overall piece, and therefore eschews easy interpretations that Hogarth had any covertly misogynistic intent. Although the painting also offers this interpretation, the absence of the fire in the painting tends to separate the two pieces, which fail to be brought together by this common narrative strand.

The paintings, as well as reflecting an appeal towards a specific market and generating the pieces to operate in isolation from one another, was also burdened by the processes of painting itself. Engraving allowed for more focus to be placed on the literary and the symbolic intent of the prints. Because of the “spectacular” nature of painting, that elevates painting towards an ideal of representing reality through the detailed use of light, colour and painterly technique, often subtle “literary” and narrative threads are lost in the overall image. The paintings of “The Rake’s Progress” are notably less enriched by references and allusions to current events. Also, much of the literary referencing is dropped in favour of more universal themes. Engraving more easily allows for more detailed technical work to take place, and in “The Rake’s Progress”, this is encapsulated by a series of symbolic gestures that serve to heighten the moral and ethical views of the artist himself, displaying a critique of the hypocrisies of class and class mobility in a way that painting, in regarding the realistic rendering of subjects more highly than providing allusions and richly symbolic content, tends to eschew.

For instance, Plate 1 details, written on a script, the words “Put off my bad shilling”. “Put off” could easily be read as spend, and thus this provides an ironic allusion to both the power of money to corrupt, and the subsequent actions of Tom that results in his fall from grace. Plate 2 offers more details that add to the subtlety of the piece. Hogarth decides to feature in his print a long scroll, which again is absent in the painting. It displays a long list of known noblemen and members of the aristocratic elite. The baffled expression on the face of Tom suggests with subtlety that Tom doesn’t exactly fit into the society that he has found himself in, and that his irresponsibility with money, coupled with his falsely acquired elevation to this level of society will inevitably lead to confusion, strife and his own destruction. Plate 4 is especially detailed in its construction and its critique of class hypocrisy. A bolt of lightning in the engraving replaces the sunnier climate portrayed in the painting. This heightens the dark mood surrounding his arrest, and metaphorically suggests his decline from form and fall from grace through bombarding us with a series of omens that symbolically echo this air of Tom’s impending collapse. Gordon (2003) additionally comments that “These omens, caught in comical stasis, are even more devastatingly echoed by the bolt of lightning, complete with directing arrow about to strike ‘White’s’, a gambling house for the aristocracy.” This print also contains wordplay and class-based satire. Although the lightning bolt is subtle in where it is directed, the hidden meaning of the vice that occurs within these aristocratic circles is acerbically satirised by the presence of the children on the right side of the composition. They gamble and cheat as the aristocrats would. In addition, there is a literary reference to “White’s”, because they are huddled around a sign that says “Black.” Perhaps here Hogarth is commenting on the hypocrisies of class and that money has surpassed virtue and goodness in disturbing and profound ways in the urban environment. Although they are labelled as opposite, the irony is that the only difference between the aristocrats in the gambling halls and the children on the street corner is in terms of wealth. This presents an allusion that is absent in the painting, presumably because the market for the painting would be those very aristocrats who are being satirised, and also that the restrictions on the subject matter of paintings doesn’t historically allow for such acutely literary wordplay. Plate 5 depicts a crack running through the last five of the Ten Commandments on the wall which, along with the broken-down appearance of the church, suggests a receding faith and morality among the urban rich. The engraving of Plate 7 also adds to this richness of symbolism with the presence of wings in the top left corner of the engraving. Presumably, this was left out of the original painting because, without reference to the other pieces, this symbol would be meaningless, and priority was placed in the paintings on developing a series of monumental “spectacles” rather than work that satirically questioned the political, sociological and ethical codes of the time by richly entwining narrative and metaphorical threads into a single, coherent document.

In Hogarth’s “Rake’s Progress”, the differences between the engraved and the painted versions of the work differ on a number of levels and for a number of different reasons. Firstly, the passing of the copyright act in 1735 allowed for artists to maintain artistic control of their work after it had been distributed. This allowed for a greater democratisation of artistic work and, along with developments in technology and the printing press, made a work more profitable if it could utilise this technology and appeal to the newly emergent affluent middle-classes of the period. The sociological differences in the target markets of the two types of art led to differences in subtlety regarding their satirical, class-based themes. It also meant that Hogarth could conceivably make money from satire, as the intention of the artist in this form is not to produce flattering works for rich patrons, or hugely rich and spectacular Christian works for the church. In short, the democratisation of distribution channels for engraved art in terms of printing changed the market for art production, and allowed for artists to promote their different views. Secondly, the development of engraving as a medium worked in conjunction with developments of the printing presses, and as an art, eschewed the need to create a rich, colourful piece of work in order to find a patron that would conceivably purchase the painting. In engraving, because of the limitations in creating a “spectacular” and singular piece of work, room is made for cramming in a dizzying entourage of pointed metaphors and symbolic and literary meanings beyond the actual engraving itself. Almost every print contains ironical remarks and comparative and satiric allusions to other art, to common cliche, or to class stereotyping. Also, technologically, printed engraving is disseminated together in one binding, instead of separately, as is the case with paintings. Thus, it was more justifiable for Hogarth to develop his themes from one print to the next, and also to develop his metaphors, allowing them to generate more richness and complexity with every print. The result is that engraving developed into a more “literary” narrative style that prioritises the narrative thread over the singular intent of the painting. Also, because of engraving in books innate lack of colour or “spectacle”, the rich meaning of the pieces, as Gordon (2003) suggests, “recede through a greater range of visual planes.” Metaphor, symbolism and upholding narrative threads throughout the plates are favoured over spectacle and the depiction of universal themes. “The Rake’s Progress” was a financial success as an engraving because it took into account the limitations and the liberating qualities of using this particular medium, and also appealed to the new and emergent market of literate middle class citizenry.

Bibliography

Bowen, M., William Hogarth: The Cockney’s Mirror. (D. Appleton & Company, 1936)

Gordon, I. R. F. (2003). “A Rake’s Progress.” in The Literary Encyclopedia. http://www.litencyc.com/php/sworks.php?rec=true&UID=7031 [accessed 4^th November 2006].

Waterhouse, E. (1953). Painting in Britain, 1530-1790. (London: Penguin)

Through a close analysis of The Crying Game, examine Judith Butler’s notion of the performativity of gender

There appear to be many similarities between Neil Jordan’s 1992 movie The Crying Game and Judith Butler’s theory of the performativity of gender as promulgated in her seminal book Gender Trouble, which has been one of the most hotly contested intellectual studies on feminism published in the past fifty years. Both managed to cause major controversy by turning the traditional notion of gender on its head and both invite the audience/reader to question society’s making of ‘man’, ‘woman’, ‘masculinity’ and ‘femininity’. The following analysis seeks to show how Butler’s ideas managed to permeate Jordan’s film, which is – it should be noted – a much more complex movie than a mere study of gender issues. First, however, a definition of the ‘performativity’ of gender must be attempted so as to establish a conceptual framework for the remainder of the discussion.

Judith Butler’s theory on gender should be interpreted within the broader social and political context of feminist theory that came in two distinct ‘waves’ during the 1960’s and the 1970’s. After securing the requisite political achievements gained by the advances of the first wave, the second, more radicalised wave of feminism sought to challenge historical notions of man and woman in western society, “which maintains male dominance by co?opting women and suppressing the feminine. These arguments link dominant western forms of rationality with male power and control over women and nature, which is associated with violence, oppression and destruction.”^[1]

Thus, while Butler’s views are doubtlessly revolutionary, they should also be read within this dominant feminist climate of deep?seated change that characterised the second half of the twentieth century in the West, which sought to deliberately create divisions between heterosexual men and heterosexual women in order to further the feminist cause. This is also the reason behind the alliance between radical feminism and the gay and lesbian communities, which was forged at this time and which is directly relevant to the performativity of gender as seen in The Crying Game. Butler’s views deviate from the feminist norm with regards to the way in which she formulates the idea of having to ‘perform’ the parts of man and woman in contemporary society. In this sense, she sees both masculinity and femininity as being manufactured by culture and she plants the idea that if this culture were structured along less visibly male?female lines, then the two genders would behave in a discernibly different manner. This is the idea which is used in The Crying Game to which attention must now be turned.

The Crying Game is a movie that is as much about the Troubles of the IRA as it is a film about trans?gender analysis. The plot concerns the nucleus of a small band of Irish terrorists who kidnap a British soldier (Forest Whitaker) for the purpose of exchanging him in order to secure the release of captive IRA operatives in UK jails. The gang is led by Maguire (Adrian Dunbar) and also contains Jude (Miranda Richardson) and Fergus (Stephen Rea.) It is the character of Fergus who will become the main focus of the film as first he finds himself unable to the kill the British soldier, Jody and subsequently he embarks upon discovering the dead man’s lover, Dil (Jaye Davidson) to whom he finds himself immediately attracted. This burgeoning relationship between Fergus and Dil is fraught with tension as Fergus feels tortured by guilt for the death of Jody (although Fergus lets him go, the soldier is still accidentally killed by a British tank). This tension is an essential cinematic precursor to the movie’s central plot twist, which comes as a major surprise to the viewing audience.

Before moving towards a critical appraisal of the revelation that occurs within the relationship of Dil and Fergus, mention must be made of the way in which Neil Jordan manages to exploit the traditional notions of woman in film. By picking an androgynous looking actor to play Dil, the director tricks the audience into believing a traditional heterosexual relationship between a man and a woman is about to take place – a relationship rendered tragic by the loss both characters have already suffered. This coupling, in film history, has usually seen the man seducing the woman who acts as the aesthetically beautiful centrepiece of the action.

“In the celluloid brothel of the cinema, where the merchandise may be eyed endlessly but never purchased, the tension between the beauty of the woman, which is admirable, and the denial of the sexuality which is the source of that beauty but is also immoral, reaches a perfect impasse.”^[2]

Therefore, when it slowly transpires that Dil is not yet another example of the cinematic female beauty but is in fact a man, the sense of shock is all the more pronounced. As with Butler’s idea on the performativity of gender, Jordan stops short of stating this development as a fact; instead, it is left open to conjecture as a philosophical question: does Dil’s biology mean that he is a man no matter what or does the fact that he has assumed a female role mean that he has transgressed the gender divide to become a woman in the cultural sense? This is a key line of inquiry in radical feminist ideology and one that has no direct answer. For instance, although traditionalists would argue that no?one can ever reverse the gender of their birth liberals would likewise state that gender is a construct of society and that both males and females should be freely able to choose not only their sexuality but also their gender. This is a direct descendent of Judith Butler’s Gender Trouble where the author argues the case that men and women both perform the roles of masculine and feminine without ever questioning its validity in this way.

“Gender is … a construction that regularly conceals its genesis; the tacit collective agreement to perform, produce and sustain discrete and polar genders as cultural fictions is obscured by the credibility of those productions – and the punishments that attend not agreeing to believe in them.”^[3]

Fergus’ response to the realisation that Dil is a transvestite is typically male and typical of society’s general horror at such transgressions of sexuality and gender. His first response is to punch Dil in the face and retract his previous statements of affection. He exits the scene, leaving Dil lying bloodied on the floor. Fergus’ disgust is mirrored in the shock felt by the contemporary cinema audience, which was manifested in mass protests from Christian and conformist communities when the film was released both in the UK and abroad.

The director makes sure not to over or under dramatise the revelation of Dil’s transgression of gender, preferring instead to let the remainder of the plot play out to the backdrop of the shock of the ongoing relationship between the two main characters. With the spectre of the IRA unexpectedly re?appearing towards the end of the film, the audience is transported away from the notion of the performativity of gender to see how Fergus is able to rise above his initial feeling of disgust to save Dil from prison after the shooting of Fergus’ old comrade, Jude. Interestingly, Dil is compelled to murder Jude when it transpires that she had enjoyed a sexual relationship with Jody while the soldier was in her captivity. Thus, there is no doubt that – after all that has transpired – Dil still identifies herself as a woman and is directly challenged by the more obviously feminine Jude. At this point, mention must be made of the difference between Butler’s notion of the performativity of gender and the kind of transgender concepts encapsulated in drag and cross?dressing.

“In the majority of the works that have followed in Butler’s wake, drag (as the parodic enactment of gender) is represented as something one can choose to do: the imputation is that one can be whatever type of gender one wants to be, and can perform gender in whatever way one fancies. This is what you might call a voluntarist model of identity because it assumes that it is possible to freely and consciously create one’s own identity. Whilst in many ways this voluntarist account of gender performance is in direct contrast with Butler’s notion of performativity, it is also, at least in part, a consequence of the ambiguity of Butler’s own account of the distinction between performance and performativity in Gender Trouble.”^[4]

Appropriately, Neil Jordan never alludes to whether or not Dill is voluntarily transgressing gender or whether it is a biological necessity for man to have morphed into woman. This mirrors Butler’s ambiguity and the ambiguity that pervades every aspect of the notion of crossing gender, which is one of the more intellectually challenging concepts for any society to grapple with. Ultimately, though, The Crying Game ends with a hint of the director’s views on the subject. During the final scene, which is set years later, Dil asks Fergus why he took the blame for her. Recounting an earlier scene, Fergus replies, “It’s in my nature.” This implies that there is no choice with regards to gender, sexuality and performance. We are what we are.

Conclusion

The Crying Game is a challenging film that operates on a variety of levels. Politics, race and gender are all subject to scrutiny without being dealt with in a moralistic way. Judith Butler’s notion pertaining to the performativity of gender is likewise a multifaceted study that has greatly influenced feminist ideology and has clearly infiltrated the mind of director Neil Jordan. In the final analysis, there can be no doubt that there is a strong link between the two without any simple, broad?based conclusion being put forward by either party. In both instances, it is left up to the reader and viewer to make their minds up concerning gender and the wider issue of whether it is nature that constructs our sexual being or whether it is cultural nurturing that subconsciously encourages us to play the roles of heterosexual men and women. This is a difficult sensible balancing act to maintain, yet it is also ultimately sensible as both The Crying Game and Gender Trouble arrive at the opinion that there can be no one deduction that manages to satisfy everyone. The conclusion, like the choice of gender and sexuality, must in the end be wholly subjective.

BIBLIOGRAPHY

Butler, J. (1990) Gender Trouble: Feminism and the Subversion of Identity London: Routledge

Carter, A. (1978) The Saideian Woman and the Ideology of Pornography New York: Harper & Row

Featherstone, M. (Ed.) (2000) Body Modification London: SAGE

Shaviro, S. (1993) The Cinematic Body: Theory out of Bounds, Volume 2 Minneapolis and London: University of Minnesota Press

Stallybrass, P. and White, A. (1986) The Politics and Poetics of Transgression London: Routledge

Sullivan, N. (2003) A Critical Introduction to Queer Theory Edinburgh: Edinburgh University Press

Weedon, C. (1987) Feminist Practice and Poststructuralist Theory London and New York: Blackwell

FILMS

The Crying Game (Neil Jordan; 1992)

This assignment will discuss the advantages and disadvantages of incorporation of companies. This will be discussed in relation to public and private companies and it will be concluded that the main advantageous of incorporation is and continues to be that of limited liability and separate legal personality. Other issues will discussed and the advantages and disadvantages discussed.

It is important first to point out the distinction between public and private companies, the former being those which are permitted to offer their securities to the public and the latter being those which are not so permitted. Often whether a company is public or private is taken more generally as an indication of the social and economic importance of the company, so that the public company is more tightly regulated than the private company in a number of ways, which fall outside the remit of this assignment. However, it is important to note that this difference does exist.

The fundamental attribute of corporate personality is that the corporation is a legal entity which is distinct from its members. At the end of the 19^th Century following the case of Salomon v Salomon & CO^[1] this concept was finally grasped by the courts and it was appreciated that companies have a separate legal entity, as Lord Macnaghten explained

“The company is at a law a different person altogether from the subscribers….; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers, as members, liable in any shape or form, except to the extent and in the manner provided by the Act^[2]”

As a corporation is a separate legal person its members are not personally liable for its debts^[3]. This principle also applies to obligations other than debts such as the members of the company, although members who become involved in the management of the company’s business will find that this separate legal personality does not necessarily protect them from personal liability to third parties.

If a company enters insolvent liquidation, in theory the issue undergoes a considerable change, although in practice it does not. The question becomes whether the liquidator acting on behalf of the company can seek contributions from its members so as to bring its assets up to the level needed to meet the claims from the company’s creditors. The overall result of the broad recognition by the courts of the separate legal entity of the company and of the limited liability of its members and managers is to produce at a first sight a legal regime which is very unfavourable to potential creditors of companies. However lenders often “seek to leap over the barrier created by the law of limited liability by exacting the price of the loan to the company personal guarantees of its repayment from the managers or shareholders of the company, guarantees which may be secured on the personal assets of the individuals concerned”^[4]. Legislation, whilst it has not overturned Salomon, contains an extensive list of publicity and disclosure obligations to priorities for certain classes of unsecured creditors on the winding-up of a company^[5]. Recently added to these statutory weapons are the provisions relating to the wrongful trading and the expanded provisions on the disqualification of directors, especially on grounds of unfitness.

One clear advantage of corporate personality is that it enables the property of the association to be more clearly distinguished from its members. In an unincorporated society, the property of the association is the joint property of the members. The rights of the members therein differ from their rights to their separate property since the joint property must be dealt with according to the rules of the society and no individual member can claim any particular asset. By virtue of the trust and the obvious complications can be minimised but not completely eradicated. And the complications cause particular difficulty in the case of a trading partnership both as regards the true nature of the interests of the partners and as regards claims of creditors.

On incorporation, the corporate property belongs to the company and members have no direct proprietary rights to it but merely to their “shares” in the undertaking. A change in the membership, which causes inevitable dislocation to a partnership firm, leaves the company unconcerned; the shares may be transferred but the company’s property will be untouched and no realisation or splitting up of its property will be necessary, as it will on a change in the constitution of a partnership firm. Similarly, the claims of the company’s creditors will be merely against the company’s property and the difficulties which can arise on bankruptcy of partners will not occur.

There are difficulties relating to legal actions in unincorporated associations. The problem is of practical importance with trading bodies but has been solved in the case of partnerships as they are now able to be sued or sue in the firm’s name^[6], although there are still practical difficulties in enforcing the judgement. This question does not arise with incorporated companies as they can sue or be sued in their own right.

Another advantage of a limited company is that it cannot become incapacitated by illness, mental or physical, and it does not have to have an allotted life span^[7]. This of course does not mean that the death or incapacity of its human members may not cause the company considerable embarrassment, however the vicissitudes of the flesh have no direct effect on the disembodied company, as Grcer LJ said “ a corporate body has no soul to be saved or body to be kicked.^[8]” The death of a member leaves the company unmoved: members come and go but the company can go on forever.^[9] The continuing existence of a company, irrespective of changes in its membership, is helpful in other direction also. When an individual sells his business to another, difficult questions may arise regarding the performance of existing contracts by the new proprietor^[10], the assignment of rights of a personal nature^[11], and the validity of agreements made with customers ignorant of the change of proprietorship^[12]. Similar problems may arise on a change of the constitution of a partnership^[13]. Where the business is incorporated and the sale is merely of the shares, none of these difficulties arise. The company remains the proprietor of the business, performs the existing contracts and retains the benefits of them, and enters into future agreements. The difficulties attending vicarious performance, assignments and mistaken identity do not arise.

Connected to this issue is the issue of the shares. Incorporation with the resulting separation of the business from its members greatly facilitates the transfer of the member’s interests. In the absence of limited liability the opportunity transfer is in practice very much restricted. With an incorporated company, freedom to transfer, both legally and practically, can be readily attained. The company can be incorporated with its liability limited by shares, and these shares constitute items of property which are freely transferable in the absence of express provision to the contrary, and in such a way that the transferor drops out and the transferee steps into his shoes. A partner has a proprietary interest which he can assign, but his assignment does not operate to divest him of his status or liability as a partner; it merely affords the assignee the right to receive whatever the firm distributes in respect of the assigning partners share^[14]. The assignee can be admitted into the partnership in the pace of the assignor only if the other partners agree and the assignor will not be relieved of his existing liabilities as a partner unless the creditors agree, expressly or impliedly, to release him.

Another important feature of an incorporated company is that a structure which allows for the separation of risk investment via the purchase of shares, in which many persons may participate, from the management of the company, which is delegated to a smaller and expert group of people who partly constitute and who are partly supervised by a board of directors. This concept was first explored in the United States by AA Berle and GC Means^[15] and they drew attention to the revolutionary change thus brought about in traditional conceptions of the nature of property. Today, the great bulk of large enterprise is in the hands not of individual entrepreneurs but of large public companies in which many individuals have property rights as shareholders and to the capital of which they have indirectly or directly contributed. Direct or indirect investment in companies probably constitutes the most important single item of property for most people, but whether this property brings profit to its “owners” no longer depends on their energy initiative but on that of the management from which they are divorced.

Two further advantages which must be considered are that of borrowing and taxation. The ingenuity of equity practitioners has led to the evolution of an unusual but highly beneficial type of security known as the floating charge; i.e. a charge which floats like a cloud over the whole assets from time to time falling within a generic description, but without preventing the mortgagor from disposing of those assets in the usual course of business until something occurs to cause the charge to become crystallised or fixed. This is advantageous to incorporated companies because until recently such a charge could not really apply to partnerships or other unincorporated organisation -this is because of two pieces of legislation. The first was the “reputed ownership” provision in the bankruptcy legislation which relates to individuals^[16]”. This, however under the reforms resulting from the report of the Cork Committee was repealed and not replaced in the Insolvency Act 1986. It never applied to the winding-up of companies. The second, which still remains, is that the charge, in so far as it related to chattels, would be a bill of sale within the meaning of the Bills of Sale Acts 1878 and 1882 which applies only to individuals and not to companies^[17]. Hence it would need to be registered in the Bills of Sale Registry, and, what is more important, as a mortgage bill it would need to be in the statutory form which involves specifying the chattels in detail in a schedule. Compliance with the latter requirement is impossible since in a floating charge the chattels are indeterminate and fluctuating. Therefore it can be seen that use of this form of security is in practice restricted to bodies corporate. By virtue of it the lender can obtain an effective security on “all the undertaking and assets of the company both present and future” either alone or in conjunction with a fixed charge on its land. By so doing he can place himself in a far stronger position that if he merely had the personal security of the individual traders. It therefore happens not infrequently that a business is converted into a company solely in order to enable further capital to be raised by borrowing.

Once a company reaches a certain size, the attraction of limited liability is likely to outweigh all other considerations when business people are considering in what form to carry on their activities. Investors are unlikely to be willing to put money in a company where there liability is not limited if they are to have no or little control over the running of the company and for this reason incorporation is preferable. However with small businesses, which it is feasible to give all the investors a say in management, it is likely that tax considerations play a major part in determining whether the business shall be set up in corporate form or as a partnership. In the case of small companies the investors’ return on their capital may take the form of the payment of directors’ fees rather than dividends, so that participation in the management of the company may be the means for the investor both to safeguard the investment and to earn a return on it.

This assignment has discussed the advantages and disadvantages of incorporation of companies. It can be seen that the advantages of incorporation very much depend on one company to another. For larger firms the division between the board and shareholders, transferable shares and the conferment of limited liability on the shareholders are helpful for the raising of capital. Partnerships and unincorporated organisations do not lend themselves easily to this kind of need and therefore are more favourable in this respect. There are many other issues that make incorporation favourable but it can be seen that it is, and will continue to be the fact that these organisations have limited liability that will continue to make them attractive and more advantageous than unincorporated organisations.

Bibliography

Cases

Brace v Calder (1895) 2 QB 253

Boulton v Jones (1857) 2 H & N 564

British Waggon Co v Lea (1880) 5 QBD 149

Griffith v Tower Publishing Co [1897]1 Ch 21

Rayner (Mincing Lane) Ltd v Department of Trade [1989] Ch 72

Re Noel Tedman Holding Pty Ltd (1967) QD R 561

Robson v Drummond (1831) 2 B & AD 303

Salomon v Salomon & CO [1897] AC 22 HL

Slavenburg’s Bank v International Natural Resources Ltd [1980] 1 W L R 1076

Stepney Corporation v Osofsky [1937] 3 ALL ER 289

Statutes

Bankruptcy Act 1914

Bills of Sale Acts 1878

Insolvency Act 1986

Partnership Act 1890

RSC ORD 81

Books

Berle A and Means G, (1993) “The Modern Corporation and Private Property” New York

Davies P, (2003) “Gower and Davies Principles of Modern Company Law”, Seventh Edition, Thomson Sweet and Maxwell

Dobson P, (2003) “Commercial Law”, Third Edition, London Cavendish

Morse G, (2005) “Charlesworth Company Law”, Seventeenth Edition, London Sweet and Maxwell

Smith and Kennan, (2005) “Smith and Keenans Company Law , Thirteenth Edition, Harlow Press/Longman

1

The presentation of women in Charlotte Bronte’s Jane Eyre (1847) and Gustave Flaubert’s Madame Bovary (1857) is one of the principal informatives of the novels. Clearly, the presentation of women in each case is influenced by the authorial directive which drove the novels and certainly the gender related issues can be seen to be connected to this. In addition, the structural imperative of the narrative voice invites a specific perception of the women which is only essentially revealed when the text is examined closely, particularly in terms of contrast and comparison.

In both the novels to be discussed here, the central protagonist is female and events are arranged around a woman’s life and struggles in a society designed by men for the convenience of men. Also, the books each have an eponymous heroine which invites the initial perception that the entire narrative is to be fundamentally built upon a female centre of consciousness (though Flaubert, in common with many critics, thought the novel guilty of ‘faulty perspective’^[1], partly because of this, perhaps). However, this must be qualified by the interaction with other female characters which each novelist uses both to develop the plot and intensify the reader’s understanding of the titular heroine’s actions in each case.

Both novels also present images of women who in different ways either reflect or challenge perceived notions of how women should behave in contemporary society. Indeed, it might be said that each of these books question the basis upon which fundamental mores of the era were based and deviated from accepted moral standards. Perhaps because the chief agents of this in both novels are women, the books were thought even more outrageous than might otherwise have been the case though ‘stereotypes and prejudices have at least some positive aspects’^[2] even if only in their repudiation.

However, though Bronte’s novel opens by establishing a deeply disturbing matriarchal environment which does little to challenge the idea of the stereotypical ‘wicked-stepmother’, in the person of Jane’s reluctant guardian, her aunt, Mrs Reed, by whom she is degraded in a home where the child is ‘less than a servant’^[3], it nevertheless gives the author, through Jane, the opportunity to intimate that the roots of an inner-strength and self-reliance which are to be so important to her in the future are imbedded in her childhood trials. The inevitable inference, perpetuated by the fact that a considerable amount of Jane’s suffering is inflicted by women, is that cruelty in some sense straitens the character. Moreover, the embryonic woman may be perceived in Jane’s acceptance of this treatment:

This reproach of my dependence had become a vague sing-song in my ear; very painful and crushing, but only half intelligible.^[4]

Jane’s subsequent subjugation, both as a pupil at Lowood School and in her position as a governess, the ultimate ‘non-persona’ of nineteenth century female existence and one of which the author had personal experience, may be seen to be endured with extraordinary patience because of these early insults. Indeed, Bronte wrote the character of Jane to be ‘plain, small, and unattractive, in defiance of the accepted canon’^[5] and like herself, in fact, so her women are inevitably influenced by this directive: ‘Why was I always suffering, always browbeaten, always accused, for ever condemned? Why could I never please?’^[6] This desire to ‘please’ is quite definitely connected here with the female stereotype which to some extent Jane’s later behaviour negates. Thus, Bronte’s portrayal of the female child is, to invert Wordsworth, ‘mother of the woman’ for the injustice of her treatment is forcibly emphasised, as it is later at Lowood (the cruelty of which was autobiographical as two of Bronte’s sisters died at a school very similar to it). It is crucial that Jane’s sufferings should be seen to be inflicted by women, for as Jane says, ‘I doubted not-never doubted—that if Mr. Reed had been alive he would have treated me kindly’^[7]. Clearly, the author’s directive is to display how very different is the cruelty of women inflicted upon their own sex from that of men who, like Rochester, involve a sexually charged sadistic element in their cruelty towards women.

Flaubert’s novel creates rather a different consciousness, however, and the directive for this is possibly created by the passion of the novel, which was for a time banned in France on the grounds of obscenity. Emma Bovary, unlike Jane Eyre, is driven less by the sense of injustice brought about by her familial circumstances than her desire for a more passionate existence than her husband, the mediocre doctor Bovary, can provide. In a sense, she is the antithesis of Jane, since she longs not for a simple existence with a loving husband, that she has, but for a life of which she has read in romantic fiction, symbolised by her desire for ‘a marriage at midnight by the light of torches’^[8] (though this has been shown to be also a custom rather than an idiosyncratic whim^[9]). Emma is, from the first, presented sensually: ‘she shivered as she ate, thereby causing her rather full lips, which, in moments of silence, she was in the habit of biting, to fall slightly apart.’^[10] Anticipating Hardy’s description of Tess eating a strawberry offered by her seducer, Flaubert focuses the attention of the reader immediately upon Emma’s mouth, slightly open, in an unconsciously provocative attitude. In this, she is very different from Jane, who is presented as demure to the point of austerity, perpetually dressed in dark clothes, partly due to her situation but also, the reader might infer, due to a repressed self-image. (Interestingly, Flaubert often dresses Emma in blue, with varying numbers of flounces; this would be recognisable in the Catholic France as the colour traditionally associated with the Virgin Mary.)

Nowhere is this more evident than when she is compelled by Rochester to attend an evening party at Thornfield and we see her juxtaposed with the flirtatious Blanche Ingram and the party who, dressed in white ‘flock’^[11] into the drawing room like ‘white plumy birds’^[12] in stark contrast to the soberly dressed Jane, all in grey. The women speak in an ‘habitual’^[13] way, indicating that it is both natural and practised: a register of opposite inflection which suggests the elaborately artificial, indicative of their representation, via Jane’s perspective, at least, and since Jane’s voice is that of the book, that is the view we are invited to share. As she says, ‘Miss Ingram […] was self-conscious— remarkably self-conscious indeed’^[14]. Bronte’s employment of the term ‘self-conscious’ is interesting since it encapsulates, in the two meanings of the term, the difference between Blanche and Jane. Blanche is conscious of herself as a vain exposition but Jane is self-conscious in terms of abnegation. Significantly, at this point, the narrative register switches, to present the scene as if Jane is watching it: ‘I sit in the shade—if any shade there be in this brilliantly-lit apartment; the window-curtain half hides me’^[15]. (Apparently Charlotte was also self-effacing at parties, where she would hide behind the curtains in order to be both present and not so.) The author thus employs a dual vicariousness of experience, since she is speaking autobiographically behind the veil of Jane who is now watching herself in a recalled reactive, ‘I might gaze without being observed’^[16] as she remarks. The women’s conversation is at best indiscreet and at worst cruel, as they discourse on the nature of governesses, ‘the whole tribe’^[17], almost as one might of a separate and inferior species of being which they undoubtedly believe to be true, in common with most of the aristocracy of the time. Moreover, they speak of an ‘immoral tendency’^[18] which they believe to be present in the governess and the entire lack of privacy which attaches to the position. Charlotte had experienced this herself, no doubt, in her life as a governess, belonging neither upstairs nor downstairs and loathed by servants and masters alike. The Ingram party are representative of women who subjugate others of their sex within the class conscious society in which the novel operates, and by showing them as vain and shallow as well as unkind, Bronte invites the reader to infer that their judgements are likewise via an intimate distancing.

It is interesting to compare this behaviour of Jane’s with that of Emma Bovary at a ball. Far from wishing to hide herself, Emma longs both to see and be seen on a larger stage than that of the ‘country town’ of the title:

Emma’s heart gave a faint flutter as she stood in the line of dancers, her partner’s fingers lightly laid upon her arm, waiting for the first stroke of the fiddler’s bow to give the signal for starting. But very soon her emotion vanished. Moving to the rhythm of the orchestra, she swam forward with a gentle undulation of the neck. A smile showed upon her lips at certain tender passages on the violin, when, now and again, it played alone and the other instruments were hushed. The sound of gold coins chinking on the baize surfaces of card-tables was clearly audible. Then, with a crash of brass, the music would once more strike up loudly. Feet took up the measure, skirts swelled, swishing as they touched one another, hands were given and withdrawn, eyes, downcast a moment before, were raised again in silent colloquy.^[19]

This intense sensuousness follows Emma’s mockery of her husband’s desire to dance and it is clear that she wishes to enjoy this experience in solitude though not of course in isolation. She desires her husband’s absence and thus Flaubert separates the passionate Emma from the practical one. There is a danger and excitement here for which Emma longs and which is represented not only in the ‘silent colloqu[ies]’ but also in the ‘chinking’ of the ‘gold coins’ at the card tables. Flaubert foreshadows Emma’s own risk-taking here as she is thrilled by the intensity of the atmosphere in a way that Jane most decidedly is not. Further, Emma’s feelings are present in the way in which the author describes Emma’s points d’apuis involving the reader in her sensuality as ‘she swam forward with a gentle undulation of the neck’. How different is this subliminal image of the swan from that rendered by Jane? Moreover, Flaubert’s intense desire for verisimilitude will not allow for the shadowy and duplicitous register of the faux autobiographical first person narrative which Bronte adopts, and which was imitated by such notable authors as Dickens in David Copperfield (1850) and therefore attempts to present Emma as both fragile and strong, flippant and serious, a fully rounded woman, in fact, having her feet firmly on the ground in some areas but hopelessly romantic in others:

Sometimes she sketched, and Charles found much delight in standing at her side, watching her bend above her drawing-board, half closing her eyes the better to judge the effect of her work, or rolling little pellets of bread between finger and thumb. The quicker her hands moved when she played the piano, the greater his surprise. She struck the notes with a sure touch, and could run down the keyboard from treble to bass without a moment’s pause. […] But there was another side to Emma. She knew how to run her house. […] Because of all this the consideration shown to Bovary increased. ^[20]

It is important that Bovary ‘came to value himself the more highly for possessing such a wife’^[21] as he thus inverts the received notion that a woman’s status derived from her husband, not the reverse. ’The difference within writing is then coextensive with the difference between the sexes’^[22] and for the essence of mediocrity, Charles Bovary, the gifted, artistic yet apparently level-headed Emma, is the equivalent of a modern day trophy wife. Therefore, when he is betrayed by her infidelities the pain is all the greater. Marriage was the principle duty of both men and women in the centuries up to and including the nineteenth and after, and the marital state, as well as deviations from it, drives the narrative throughout both novels. Emma is highly regarded not just because she is beautiful and artistic but because she can adequately fulfil what society expects of a wife. Further, it is reasonable to assume that the latter approbation would be principally granted by the provincial matrons who will later disapprove so strongly of her behaviour. Thus, Flaubert exposes both the inherent hypocrisy of the society and the restrictive expectations of the role of a wife. Both parties to such a union are ultimately unhappy and Flaubert at least offers a reason for Emma’s behaviour by means of emphasising her husband’s mediocrity:

Had Charles but shown the will to listen, had he but suspected the movement of her thoughts, or seen but once into her mind, her heart would, she felt, suddenly have released all its wealth of feeling, as apples fall in profusion from a shaken tree. But as their lives took on a greater intimacy, so did detachment grow within her mind and loose the bonds which bound them.^[23]

Analysis of a translated text is always problematic but the semantic field is so apparent here that it is possible to comment on the text with some degree of accuracy. Clearly, what drives this damning description of Charles is the fact that he manifestly has a choice; it is as if he makes no effort towards understanding his wife and thus the ‘intimacy’ which might have been is displaced by ‘detachment’. Moreover, the idea that they are ‘bound’ by their respective postures impacts upon the metaphorical rendering of the passion contained within Emma. Similarly, the repressed passion of Jane cannot be released until Rochester has in a sense been emasculated so that he needs Jane and understands her need to have an existence of her own without entrapment.

This picture of woman as imprisoned within both body and soul by the propriety of a fundamentally hypocritical society is literally true of Rochester’s ‘mad’ wife, Bertha Mason. Perhaps because of the tendency to focus upon Jane and Rochester’s romance, the plight of Bertha is rarely examined and she is confined to a Gothic stereotype which reflects Charlotte’s reading, as does the Byronic Rochester, but leaves little room for a sympathetic reading of the woman’s existence. She is simply presented as an impediment derived from an entrapment in Rochester’s youth:

Mr. Rochester flung me behind him: the lunatic sprang and grappled his throat viciously, and laid her teeth to his cheek: they struggled. She was a big woman, in statue almost equalling her husband, and corpulent besides: she showed virile force in the contest—more than once she almost throttled him, athletic as he was. […]”That is my wife,” said he. “Such is the sole conjugal embrace I am ever to know—such are the endearments which are to solace my leisure hours! And this is what wished to have” (laying his hand on my shoulder): “this young girl, who stands so grave and quiet at the mouth of hell, looking collectedly at the gambols of a demon. I wanted her just as a change after that fierce ragout. Wood and Briggs, look at the difference! Compare these clear eyes with the red balls yonder—this face with that mask—this form with that bulk; then judge me, priest of the gospel and man of the law, and remember, with what judgment ye judge ye shall be judged!”^[24]

Mrs. Rochester is accorded no dignity either by her husband or Jane, indeed the terms of address attached to her are those of ‘lunatic’, ‘demon’ and the entirely divorced from human delineation of the ‘fierce ragout’. Bronte betrays her own lack of compassion here, as she distances the reader from any possibility of empathy by making Bertha appears as a monster, ‘big’ and ‘corpulent’, inhuman, in fact. She intriguingly applies the adjective ‘virile’ to the woman, too, and thereby invites an animalistic sexuality which has, in fact, the reader is led to believe caused Rochester to marry her in the first place, unaware of her family’s genetic tendency towards insanity. Moreover, by using a direct comparative with Jane, Bronte subliminally and possibly unconsciously, suggests a debasement of the female sex in Rochester’s terminology. Both women are referred to as objects, ‘this’ and ‘that’, and their comparative merits highlighted in a detached and oddly disconcerting way. In addition, his language is unpleasantly possessive, ‘that is what I wished to have’. Finally, he appeals the justice of his case to God, suggesting that his attitude is correct, even under Divine examination, disparagingly referring to both the ‘priest of the gospel and man of the law’. So effective is the author’s manipulation of this that the reader, as is undoubtedly the intent, forgets the inherent immorality and cruelty which all those present display. In this sense, the novel is guilty of corrupting the reader’s moral sensibility since it invites a faulty and amoral judgement based upon the romantic imperative the novelist pursues. The fact that Bertha is a woman, not an alien being, does not appear to enter the collective consciousness, here. Sexuality is inextricably bound up with the image of ‘the lunatic’, here, as Rochester speaks of the ‘conjugal embrace’ to which he is tied. It is clear to see, then, that for this author, the sexual drive has within it a link to a kind of wildness which sits uneasily with the image of the ‘grave and quiet’ Miss Eyre, especially since Bertha tears Jane’s wedding veil on the eve of the proposed bigamous marriage, a Freudian symbol, perhaps, of the virginal bride’s impending sexual ‘violation’. Even Bertha’s imprisonment may be likened to the earlier entrapment of Jane in ‘the red room’, itself a Gothic interlude and teeming with female sexual symbolism.

It is no accident that when she leaves Thornfield, Jane recovers, after an indeterminate and somewhat wayward and directionless journey in the abode of the seemingly asexual St. John Rivers and his sisters, Diana and Mary. It is later revealed that these women are related to Jane and they are like her, even to the extent of both being governesses. They are, of course, delivered to the reader as positive images, as was Miss Temple her role-model at Lowood, and the antithesis of the artificiality of Blanche and the animalistic Bertha. The fact that Jane is literally removed from her previous existence with all its inherent passion to the quietude of a parsonage says much about the didactic split in the presentation of women within Jane Eyre. Certainly, the author is keen to connect love with a kind of sanctity and passion is somewhat marginalised into areas which have significantly dark connectives. The well-read and steadily sympathetic sisters have little in common with the women Jane has encountered at Thornfield and indeed, even St. John himself seems insipid when compared to Rochester, thus the author’s ambivalence towards female sexuality is fundamentally present in the juxtaposition of the images of the female which are the inverse connectives between the world of Thornfield and that of the Rivers family. It may be remarked, in fact, that Jane disapproves even of the affectations of Adele, the child of a woman with whom Rochester has had a sexual relationship though he is not Adele’s father. Thus, even the innocence of the child appears to be tainted, in the author’s mind (since Jane is her centre of consciousness), by her mother’s sexually promiscuous past.

This idea of female sexuality identifies much of the imperative behind Flaubert’s novel, with his central character suffering a restricted life which we infer to be as unfulfilling sexually as it is temperamentally. Emma and Charles Bovary form an ill-matched couple but their respective discontentment stems from an intrinsic disparity that relates to more than their different aims and desires. In fact, the novel has been called ‘the tragedy of dreams’^[25] and this is indeed an apt description. Flaubert created in Emma the tragedy of a woman both awakened and doomed by passion:

Pleasure and pain metamorphose into each other. Innocence is unmasked and altered by corruption. In Madame Bovary, following the disappointment of her marriage, these changes occur in Emma because of Rodolphe. Flaubert’s corrosive irony in the narrative treatment of his characters does not lessen the pain of love or the lyrical power of Emma’s erotic awakening.^[26]

Emma is, then, an inverse of Jane, since her life is thwarted by marriage whereas Jane’s is fulfilled by it. In part, this is due to the nature of the narrative because Emma is not in love with Charles as Jane undoubtedly is with Rochester. There is an interesting irony, though, in that Bronte’s novel is born of her reading whereas Flaubert depicts his heroine as in part destroyed by the romantic dreams which have emanated from hers:

In the days before her marriage she had fancied that she was in love. But the happiness love should have brought her did not come. She must, she thought, have been mistaken, and set herself to discover what it was that people in real life meant by such words as ‘bliss’, ‘passion’ and ‘intoxication’–words, all of them, which she had thought so fine when she read them in books.^[27]

Flaubert was of the ‘realist’ school and by producing a heroine corrupted by the romances with which she had been indoctrinated, he emphasises the difference between a woman’s life in reality and as lived vicariously in the projected images of female enchantment to which Emma here refers. Moreover, Flaubert foreshadows Emma’s ultimate tragedy by the ominous words, ‘[she] set herself to discover what it was that people in real life meant by such words as ‘bliss’, ‘passion’ and ‘intoxication’’. Emma’s innate passion for romantic love is revealed as a childhood sensibility and therefore basic to her. She has been educated in a convent (which Charlotte with her anti-Catholic prejudices would have found appalling in itself) but even there she sees the ‘metaphors of affianced lover, husband, divine wooer and eternal marriage, which were for ever recurring in the sermons that she heard, [and that] moved her heart with an unexpected sweetness’^[28]. By juxtaposing love, marriage and religion, Flaubert again invites a religious connective with Emma herself. As was noted earlier, he often dresses her in the blue of the ‘Blessed Virgin’ and here he is quite provocatively bringing together, in Emma, the twin images of woman in the nineteenth century collective consciousness as either ‘Madonna’ or ‘whore’.

In addition to her fictionalised pictures of love drawn from books and religion, Emma is influenced by the stories of an ‘old maid’^[29] who visits the convent and because she belongs ‘to an old family of gentlefolk ruined by the Revolution’^[30] she ‘enjoyed the special favour of the archbishop’^[31] and was almost part of the convent, privileged to eat with the nuns. This reveals much about the class-consciousness of nineteenth century France as well as the perception of women, since the archbishop controls not only the nuns but also who may be thought worthy to consort with them. Ironically, this old lady sings to the girls ‘love songs of the previous century’^[32] and:

[…] told stories, brought news of the outside world, executed small commissions in the town, and secretly lent to the older girls one or other of the novels that she carried in the pockets of her apron, and that she herself devoured in the intervals of labour. They were concerned only with affairs of the heart, with lovers and their lasses, with persecuted damsels for ever swooning in solitary pavilions, with outriders meeting a violent death on every journey, and horses foundering on every page, with dark forests and agonies of sentiment, with vows, sobs, tears and kisses, with moonlit gondolas, with groves and nightingales, with cavaliers who were always brave as lions, gentle as lambs, and virtuous as real men never are, always elegantly dressed and given to weeping with the copious fluency of stone fountains.^[33]

Again, Flaubert the realist presents a tongue in cheek picture of the ‘positive’ images for girls selected by the church, since the old maid of whom the archbishop thinks so highly is potentially dangerous. She also enters into secret negotiations with the girls and bridges the protective gap between the convent and the outside world and fills their heads, as she does her own, with images straight out of Gothic Romance. Flaubert also emphasises that the heroes in these stories are ‘virtuous as real men never are’, which foreshadows Emma’s later tragic romances with men as they actually are.

Thus, Flaubert brilliantly involves the reader in a broad sweep of society’s image of women and the external influences which encroach upon them despite the best efforts of enclosure perpetrated by the patriarchal society in which the novel operates. In many ways, Emma’s future self is determined by her childhood as much as is that of Jane. When Emma is eventually ‘in love’ she is betrayed and because of this she is doomed since she has so inveterately been schooled in the expectations of the romantic novel. Through Emma, then, Flaubert is able to develop the theme of a reactive against a genre of which he powerfully disapproved.

A further, deeply Freudian, image of women is produced via Charles’ relationship with his mother. This controlling woman has arranged her son’s first marriage, by which she never feels threatened, but is much less secure as ‘her son’s favourite’^[34] now that he has Emma in his life:

Charles’s love for Emma seemed to her like an act of treachery to her affection, a trespassing on ground which was hers by right.^[35]

This bizarre connective of displacement, with all its psychoanalytical implications, has resonance later when Emma, uninterested in her daughter, Berthe, for a long time suddenly becomes maternal following rejection by her lover. In this way, Flaubert once again examines the nature of the connective between the images of womanhood commonly represented in contemporary society. In addition, he examines the corrupting influence of the over-bearing mother, who ‘remind[s] him of her pains and sacrifices on his behalf’^[36] and Charles is caught in the all too familiar trap, even today, of wanting both to honour his mother and please his wife:

Charles did not know how to answer these outbursts. He respected his mother but was deeply in love with his wife. He held the former’s judgement to be impeccable, yet found the latter beyond reproach.^[37]

The extraordinary contemporaneousness of this dilemma emphasises the fact that perhaps Flaubert’s novel holds up better than the more popular Jane Eyre with its outdated mores and Gothic imagery. Perhaps this preference is, in fact, an enduring symbol of a generic resistance to the ‘real’ in the novel and the fact that women remain largely the readers of such fiction as Charlotte’s rather than Flaubert’s is indicative of an inherent, if politically incorrect, desire in the female to seek romance.

The women in both of these novels stand against what society expects of them but the very different nature of their stance is represented powerfully by their contrasting endings: Jane Eyre becomes the happy wife whilst Emma Bovary commits suicide. Tracing these endings gives an indicator of society’s perceived apprehensions of a woman’s role and the individual author’s widely different directives.

However, there is no simplicity to this as Jane’s resolution is gained only by means of the ‘diminishment’ of Rochester; she has to become his nurse, as she was once his comfort and refuge, before she can become his wife:

The caged eagle, whose gold-ringed eyes cruelty has extinguished, might look as looked that sightless Samson. And, reader, do you think I feared him in his blind ferocity?—if you do, you little know me. A soft hope blent with my sorrow that soon I should dare to drop a kiss on that brow of rock, and on those lips so sternly sealed beneath it: but not yet. I would not accost him yet.^[38]

Rochester is portrayed here as the Byronic hero sufficiently reduced in status as to make it possible that Jane can be his ‘equal’, it is almost as if Bronte somehow feels that the dynamic presence of Rochester would itself be reduced if he were not in some way diminished in order to marry her. Thus, the novelist’s own perceptions come under scrutiny since there is a clear ambivalence in a woman who seems throughout her semi-autobiographical and intensely personal novel to promote an image of a woman who can stand alone but who subliminally, perhaps, becomes a reductive image in her marriage. Addressing the reader directly, as she does when she famously declares that she married Rochester, Jane suggests that the reader does not, perhaps, ‘know’ her after all.

Emma’s suicide is handled much more directly in keeping with the woman Flaubert has sought to reveal, even in death seeming both passionate and beautiful:

Emma was lying with her head on her right shoulder. The corner of her open mouth formed, as it were, a black hole in the lower part of her face. Her two thumbs were flexed inwards towards the palms of the hands. There was a powdering of what looked like white dust on her lashes, and her eyes were beginning to disappear in a viscous pallor which gave the impression that spiders had been spinning a delicate web over their surface. The sheet sagged between her breast and her knees, rising, further down, to a peak above her toes. It seemed to Charles as though some great weight, some mass of infinity, were lying upon her.^[39]

The overwhelming impression here, especially in Charles’ perspective, is that Emma is a woman crushed by her passions and surrendering to guilt, ‘a mass of infinity’, which is perhaps appropriate given the mores of the time. However, Emma is as the reader first saw her, with her mouth parted, albeit here transmuted to the ‘black hole’ which forms the ‘lower part of her face’. Is this then the inversion of her passionate nature or merely the novelist’s naturalistic rendering of a corpse? The delicacy of the description suggests a sympathetic

Table of Contents

1. Introduction5

1.1 Objective5

1.2 Reasons for Choosing the UK Books

and Publishing Industry6

2. Industry Overview9

2.1 Market Size and Attraction10

2.2 Market Sectors10

2.2.2 Paperback11

2.2.3 Electronic11

2.2.4 Fiction11

2.2.5 Non-fiction11

2.3 Industry Target Markets12

2.4 Market Sales, Performance and Activities14

2.4.1 Domestic Market14

2.4.2 Export Sales15

2.4.3 Imports16

2.5 Publishing Companies17

2.6 Employment19

2.7 Distribution20

2.8 Major Trends and Developments21

2.8.1 Emerging Book Formats21

2.8.2 Emerging Distribution Channels and Markets22

2.8.3 Developments in Technology and

Concerns in Copyright and Production23

3. Industry Analysis – PESTEL24

3.1 Using the PESTEL Analysis24

3.2 Political Factors24

3.2.1 Taxation24

3.2.2 Pricing24

3.3 Economic Factors25

3.3.1 Global Economic Factors25

3.3.2 UK Economic Trends25

3.4 Social Factors26

3.4.1 Consumer Preferences26

3.4.2 The Internet and Technology26

3.4.3 Reading Habits27

3.5 Technological Factors27

3.5.1 The Digital Age27

3.6 Legislative27

3.6.1 Copyright and Intellectual Property27

3.6.2 Market Regulations for New Entries28

3.7 Environmental 28

3.7.1 The Issue of Paper28

3.7.2 Other conservation measures29

4. Industry Analysis – Porter’s Five Forces Model29

4.1 About Porter’s Five Forces Model29

4.2 Rivalry29

4.3 Supplier Power29

4.4 Buyer Power30

4.5 Threats of Substitutes30

4.6 Barriers to Entry30

5. Conclusion31

References34

List of Tables

Time Spent of Main Activities, by Sex, 20058

Total Book Sales 1998-200210

Projected Book Sales: 2002-200710

Unit Book Sales by Format: 1998-200211

Projected Book Sales by Format: 2002/200712

Value Book Sales by Target Market: 1998-200213

Projected Book Sales by Target Market: 2002/200713

Publishers’ Export Sales: 1998-200116

Book Imports: 1998-200117

Leading Publishers Ranked by Total Retail Sales 2001/200218

Total Employment in the Publishing Industry 1998-200220

Retail Distribution21

The UK Books and Publishing Industry Analysis

1. Introduction

According to the Encyclopaedia of Global Industries (‘Book Publishing’, 2007), global spending on books increased from US$85.3 billion in 2000 to US$104.6 billion in 2005. This is despite the fact that the global demand for books had significantly dropped for a number of reasons. One of the major reasons cited for this drop was the September 11 terrorist attacks in the United States. In contrast, the United Kingdom (UK) is currently one of the world’s leading players in the world of publishing. However, it remains behind to major global producers the United States, Japan and Germany. UK is followed by another European major publisher, France In 2002, the UK book and publishing industry reached the value of a‚¤2.5 billion (‘Books and Publishing – United Kingdom’, 2003) and continues to be the major location of European publishing’s central operations and the U.S. publishing’s gateway across the Atlantic.

1.1 Objectives

The UK books and publishing industry is one of the UK’s distinct industries. As stated above, UK ranks among the world’s major book and publication producers. Readers across the globe are familiar with the UK’s contribution to the publishing world . UK writers have long been one of the more famous sets of writers in the classic and modern histories. Ranging from William Shakespeare to J.K. Rowling’s Harry Potter franchise, the UK books and publishing industry continues to play a significant role, especially among the English-language readers across the globe. However, the new media forms that have been emerging lately such as electronic and online forms of publishing currently challenge the publication preferences of the consumers today and UK print media too has got impacted.

The present study is an attempt to analyse the UK books and publishing industry. The objectives of this industry analysis are as follows:

Provide an overview of the UK books and publishing industry, its current status and projected directions.
Analyse the factors that influence the current and future operations of the industry by using the tool of PESTEL analyses.
Assess the books and publishing industry and its impact and performance in the market by using market analysis tools of Porter’s Five Forces.
Determine the critical factors that can determine the future of the UK books and publishing industry.

1.2 Reasons for Choosing the UK Books and Publishing Industry

The UK remains to have a healthy and dynamic book and publishing market; not only does the UK contain one of the significant market shares in the global book market, it boasts of a number of in-demand authors. Books and publishing in the UK highlights the society’s inherent love for books .

What is interesting in the UK book and publishing industry can be seen in the following factors:

(1) UK has had a significant role in the publishing world especially among English-language readers across the globe; however, in terms of industry size, UK remains behind book producing giants the United States, Japan and Germany. These three countries have a competitive production advantage:

the United States has strong media and entertainment industry which has also influenced its publishing sector;
Japan is known for its graphic novel and books publication, as driven by the strong manga culture and demand;
Germany’s media corporate giant, Bertelsmann, has managed to own and merge with large publishers, which makes this German company a significant player in the global industry (‘Book Publishing’, 2007).

(2) New forms of media, electronic publishing and the Internet, have emerged which have challenged the conventional publishing forms. Electronic publishing and the Internet has become a challenge in a number of areas including the redefinition of publication format (electronic or published through the Internet) and publication access (self-publishing has become popular online). This also influences the amount of interest the public continues to have in books especially when more recreational forms have evolved which may be preferred over picking up a magazine or a book. Besides, recent times have also witnessed a rise of online / virtual schools and other forms of virtual reality which has now given way to emergence of digital versions of these books or e-books.

(3) Emerging markets brought by globalisation also affect the expansion of UK publishers to other parts of the world. This is in addition to the increasing demand for English-language learning courses in non-English speaking nations can encourage the publication of books. Regional authors too can increase the interest of the global readers, and it is interesting to see how the UK publishing industry has responded to these new opportunities.

In addition to this, it is interesting to evaluate the performance of this huge industry that reaches different global markets and at the same time, is serving a more particular sector of the people’s reading habits. Based on a survey on leisure activities in 2005 by the National Statistics Office’s, reading has been cited as constituting a negligible part of how people spend their time every day. Reading, on an average, only accounts for 23 minutes among men and 26 minutes among women. The following table illustrates how this industry has been catering to a fraction of people’s average daily activities:

Time Spent of Main Activities, by Sex, 2005

(‘Time Use Survey’, 2006)

As can be seen in the table, reading has taken a backseat as compared to the time people spend watching television or having a “social life”. A similar survey conducted in 2001 among full-time workers on how they spend their free time, reading emerged as the third highest activity whereas games/hobbies/computing came in close behind (‘Lifestyles’, 2004). Evidently, in the previously cited more recent survey, games/hobbies/computing activities have overtaken reading. However, this peculiar development holds true among males who spend an average of 37 minutes in playing games, indulging in hobbies or working on computers whereas women tend to be ardent readers, thereby spending more time reading than other hobbies. It should also be noted that reading does not only limit itself to the products of the book and publishing industry as the Internet has also become a significant source for information.

2. Industry Overview

2.1 Market Size and Attraction

According to the Confederation of British Industry, the book sector has been one of the significant drivers in the overall UK retail sales growth, along with furniture and groceries (‘Books and Publishing – United Kingdom’, 2003). This shows that books are among the main purchases that people make in a combined demand in the leisure and educational sectors.

The UK books and publishing industry reached the a‚¤2.5 billion mark in 2002, making this industry having a positive overall outlook. Volume and value gains were seen rising from 2001 to 2002 at 12.1% and 16.8% respectively. The 12.1% volume increase reflected the 323.8 million units sold by 2002, which contributed to the compounded annual growth rate (CAGR) of 2.9%. Positive developments were also experienced, which started from the late 1990s up to the beginning of the millennium, with strong value gains eventually contributing to the 4% CAGR since the surge in sales in 1999 (‘Books and Publishing – United Kingdom’, 2003).

Total Book Sales 1998-2002

( Euromonitor International: Country Market Insight)

Projected Book Sales: 2002-2007

( Euromonitor International: Country Market Insight)

According to the Publishing Industry Market Review 2006, the total publishing market was worth 18.63bn in 2005, having increased by 7.6% across the review period (2001 to 2005). The Publishing Industry is defined by Newspapers, Magazines as well as Book publishing. Newspaper publishing accounts for the largest share of the market’s total value, followed by magazine publishing and book publishing.

Within the books and publishing industry in 2004, retail book sales were ?3.98bn which represents a 3.2% increase on 2003.( UK Publishing Industry 2005,) Since 1999, the market has grown by a total of 16% and around 67% of the market’s value is consumer books. The UK Publishing Industry 2004 report indicates that the UK publishing market is expected to grow by 12.9% between 2004 and 2008. Magazine revenues are likely to rise by 17.3%, newspaper revenues by 15.2% and book publishing by 14.7%. (UK Publishing Industry 2004,).

2.2 Market Sectors

The commercial publishing industry extends far beyond books and journals. Products are available in electronic as well as print form.

The overall book and publishing industry (‘Books and Publishing – United Kingdom’, 2003) can be classified on the basis of format and category

Format:

2.2.1 Hardbacks

Hardback formats are hardbound books. This format can be commonly found among books for children, new releases, and non-fiction books.

2.2.2 Paperback

Paperback or softback is the most common format . This dominantly makes up the books targeted for commercial and educational purposes.

2.2.3 Electronic

The electronic formats are the non-paper based products available on CD-ROM, or as audio books, e-books etc.

Category:

2.2.4 Fiction

The fiction category includes children’s books, novels across genres (crime, Western, thriller), historical, romance, etc.

2.2.5 Non-fiction

The non-fiction category includes educational, academic and professional books, reference books, travel guides, DIY, etc.

The performances of these different sectors (by format) are illustrated in the following table (‘Books and Publishing – United Kingdom’, 2003):

Unit Book Sales by Format: 1998-2002

(Euromonitor International: Country Market Insight)

Projected Book Sales by Format: 2002/2007

(Euromonitor International: Country Market Insight)

Based on the performance of the two main categories, fiction and non-fiction, the latter continues to dominate the book sales and continues to grow (‘Books and Publishing – United Kingdom’, 2003):

2.3 Industry Target Markets

Books can also be classified on the basis of the target market: consumer and institutional (‘Books and Publishing – United Kingdom’, 2003). The consumer market is the mainstream book market which includes regular readers and individual buyers. The institutional market for books is defined by institutions or organisations that buy books for specific purposes such as libraries. It also includes the books bought by the education sector.

There is a potential confusion as to the identification of the consumer and the institutional market as the consumer market also includes publications for academic and professional purposes. However, institutional books are mostly identified by means of prevailing theme and the market segment, such as in the case of libraries and field-specific institutions (i.e. law books collection) whereas the consumer market’s main source of distribution channel are bookshops, online stores, etc. In terms of performance, the consumer market has a significant market share over the institutional market. The total sales brought by he consumer market in 2002 was at a‚¤2.0 billion, thereby having 80.3% of the overall book market share. Average growth was cited at 17.4%, with the surge of sales throughout the year usually picking up during the last quarter (‘Books and Publishing – United Kingdom’, 2003).

The institutional market has been also experiencing positive growth at 14.3%, with its sales reaching a‚¤490.6 million and comprising 19.7% of the overall market sales. Educational sales continue to dominate the institutional sales at 63.4% whereas contributions from the library sector continue to fluctuate. As can be observed from the table given below, there was a significant drop in library sales from a‚¤114 million to a‚¤101

million from 1998 to 1999, with this particular sector experiencing fluctuations until 2002 (‘Books and Publishing – United Kingdom’, 2003).

Value Book Sales by Target Market: 1998-2002

(Euromonitor International: Country Market Insight)

Projected Book Sales by Target Market: 2002/2007

(Euromonitor International: Country Market Insight)

2.4 Market Sales, Performance and Activities

The UK books and publishing industry relies on various market forces in order to maintain its dynamism; this can be attributed to its performance mainly on domestic sales, and then through the export and import volume and sales.

2.4.1 Domestic Market

As previously mentioned, the consumer market mainly comprise of the industry’s domestic sales. Strong performance has been seen across sectors and categories, with positive developments in fiction as well as non-fiction books. Sales in fiction category experienced an average increase of 56% from 1998 to 2001, although non-fiction remains to have the significant market share (‘Books and Publishing – United Kingdom’, 2003).

A number of market strategies have emerged in order to have the publishers improve their performance. It has been noted that UK has even adopted an American market strategy framework which includes book tours and taking advantage of the different media channels to increase exposure and promotion such as online book ordering promotions and book superstores (‘Book Publishing’, 2007).

It can be observed that this has been apparent in the franchising sector in which UK fictional giant, the Harry Potter franchise, have further ventured into film and consumer products. In a way, books have established a force to create a peripheral market sector which relates the books to other relevant industries. However, the opposite takes place when classic British books such as J.R.R. Tolkiens’ The Lord of the Rings and C.S. Lewis’ The Chronicles of Narnia were made into movies, and because of the success of this channel, book sales for these works have also experienced a significant increase as this has become a promotional means in order to sell more books. Such strategy is not only felt in the UK domestic sector but also in other global sales as well.

2.4.2 Export Sales

UK books are exported throughout the world and a cited increase of 4.4% was seen from 1998 to 2002. As per a Department of Trade and Industry (DTI) report, the export market is worth approximately ?1.4bn a year. However, UK’s main export competition comes from the United States, which also produces English-language books. Some exporting strategy can be also seen through the industry (‘Books and Publishing – United Kingdom’, 2003, p. 19):

Although the worldwide Harry Potter phenomenon had a strong impact on exports, particularly over the 1999/2000 period, non-consumer publishing book sales were also a mainstay of export performance. English is the world language for titles in the scientific/technical/medical category and as such, the UK dominates the field internationally in terms of sales. For publishers of these kinds of texts exports can account for up to 60.0% of sales, particularly to the US, and it can be of great advantage for a publisher to have an American arm or to be part of an American-controlled group in terms of securing US rights of publication.

In this case, despite the stiff competition with the US titles, UK books have also been performing fairly well in the United States; the UK mainly exports to the United States. In fact, UK has been the largest exporter of books to the United States books market. The performance of the UK publishers’ export sales are as follows (‘Books and Publishing – United Kingdom’, 2003):

Publishers’ Export Sales: 1998-2001

(Euromonitor International: Country Market Insight)

2.4.3 Imports

The UK also imports books from overseas markets such as the United States. Interestingly, Asian markets have been contributing significantly to UK book imports. The second largest imports, after the United States, come from Hong Kong, and the fourth largest market is Singapore; China too is also among the top sources, gaining the eighth import source position in 2001 (‘Books and Publishing – United Kingdom’, 2003).

Interestingly, UK imports increases industry competition, with its value rising at 16.6% within the period 1998-2001. The following table shows the import value during this time period (‘Books and Publishing – United Kingdom’, 2003):

Book Imports: 1998-2001

(Euromonitor International: Country Market Insight)

2.5 Publishing Companies

Each of the three sectors of publishing in UK-newspapers, magazines and books- is dominated by around a dozen companies. Only a few companies are active in more than one sector. In fact, only Pearson PLC is involved in all three markets in a significant way. News Corporation, which publishes newspapers and which owns the book publisher Harper Collins too has entered the magazine market early in 2006. The UK publishing industry is still primarily UK owned. However, in the magazine market, there are several foreign-owned companies. These include the following:

The Conde Nast Publications Ltd
Hachette Filipacchi (UK) Ltd
IPC Media Ltd
The National Magazine Company Ltd
The Readers Digest Association Ltd and VNU Business Publications Ltd.

As indicated in Books and Publishing – United Kingdom 2003

The UK is not the home base of any major media player, such as Bertelsmann, Vivendi or AOL Time Warner. The regulations on media ownership make it easier for new entrants from abroad to establish a presence in the UK than for UK companies to substantially enlarge market share. Most of the major players in the book industry

are owned by international multimedia publishing concerns, and therefore the most helpful form of comparison is to analyse leading publishing houses, and the results of the consolidated groups which own them.

(‘Books and Publishing – United Kingdom’, 2003, p. 23)

Thus, the books and publishing industry in the UK is characterised by a handful of global conglomerates or international companies, such as Reed Elsevier Group PLC, Pearson PLC, The Random House Group Ltd and Harper Collins Publishers Ltd. The leading publisher in the UK, HarperCollins, is a merger of British publisher William Collins Sons and Co Ltd. and the American publisher Harper & Row. Today, HarperCollins is owned by the American media conglomerate, News Corp., although HarperCollins UK is the UK’s leading publishing house (Books and Publishing – United Kingdom’, 2003; ‘Harper Collins’, 2007).

In the recent years, many other companies have been acquired and merged. For instance, in 2004 a major development was the acquisition of Hodder Headline from WH Smith by the French publisher Hachette Filipacchi in 2004. This merely added to further internationalisation of UK publishing. Hachette already owned Orion which further owned Weidenfeld & Nicholson. This has lead it to become the UK’s second-largest consumer book publisher. Macmillan and Random House are both owned by German companies. These main drivers of these developments have been the business strategies applied by these corporations. These strategies can be observed to be influenced by forces such as globalisation and certain deregulations when it comes to foreign operations. Besides these, other major publishers are Blackwell and the university presses of Oxford and Cambridge.

The following table shows the leading publishers in the UK according to sales (Books and Publishing – United Kingdom’, 2003):

Leading Publishers Ranked by Total Retail Sales 2001/2002

(Euromonitor International: Country Market Insight)

2.6 Employment

By 2002, the books and publishing workforce, which also include employees in the printing sectors, were recorded at 352,000; according to the National Statistics, this figure was at 366,000 in 2001 (Books and Publishing – United Kingdom’, 2003; ‘Harper Collins’, 2007). In 2004, approximately 280,000 people were employed nationally and about 15% work part time.

It has been cited that the books and publishing industry has not offered a very promising development to its workforce in terms of pay and employment confidence (Books and Publishing – United Kingdom’, 2003, p. 22):

… In a recent survey by Bookcareers.com, 66% of employees in the industry said that they had lost colleagues to redundancy. There is widespread discontent in the industry, particularly over the issue of pay. Levels of pay, especially for starting salaries, are notoriously low, particularly bearing in mind the level of education required for publishing work, and starting salaries can be as little as ?15,000 a year. Pay is a factor in most employees’ lives,

particularly because most of UK publishing centres around London and the South East, where house prices are

simply unaffordable for people earning average salaries in the industry.

In addition to this, professional development does not sound as promising in this industry due to the lack of training initiatives and specific professional skills. Professionals in this industry are mostly managerial in nature. Hence, in terms of skills development, the demand has not been as impressive in this sector. It is therefore not as surprising that the number of employees in the industry has been discouraging in terms of rate, and employment has been also bleak due to redundancies.

Total Employment in the Publishing Industry 1998-2002

(Euromonitor International: Country Market Insight)

2.7 Distribution

In the past consumers were buying books through a variety of distribution channels such as large chain bookstores book clubs and independent and small chain bookstores, mass merchandisers, mail order, food and drug stores, discount stores, used books etc. The traditional bookshops have been losing their influence and as a result such booksellers have been also starting to fold up. The Internet is becoming one of the most active distribution channels for books and publications. Although the Internet does not have as much distribution share at this point, it continues to contribute significantly in this area as it also continues to increase as a highly-used distribution channel.

Book retailers continue to dominate the product distribution; these retailers include chained retailers and independent bookshops. As compared to independent bookshops, in recent times, , bookshop chains are starting to increase its market grasp and influence (Books and Publishing – United Kingdom’, 2003).

Another distribution source is through book clubs. The UK’s leading book club, BCA, combines to book club concept and its mail-to-order scheme, in addition to smaller subdivision of smaller book clubs.

The book retail distribution trends have been presented in the following table: (Books and Publishing – United Kingdom’, 2003):

Retail Distribution

(Euromonitor International: Country Market Insight)

It can be observed that there has been significant increase in sale through Internet and multiple (chained) booksellers whereas there has been a decrease in distribution through independent booksellers and book clubs/mail-to-order.

2.8 Major Trends and Developments

The dynamism of the books and publishing industry in the UK can be determined by the key trends and developments that can eventually affect how the industry operates and performs.

2.8.1 Emerging Book Formats

As previously mentioned, new formats such as e-books, CD-ROMs and audio books have now entered the market. Among the three, e-books have been creating a stir due to a number of reasons: it is in digital format that can be easily downloaded.

What also works well with the emergence of e-books is the emergence of technologies.. For example, PDAs have now developed into small, handheld computers that can carry a substantial amount of data; e-books, which are usually in the PDF can be easily downloaded in PDAs and accessed through PDF reader (Microsoft Reader and Adobe Acrobat). Hence, people do not have to carry large books around as they can easily access them through their devices. As per the statistics from an online download source for public domain books, manybooks.net, PDF downloads have reached almost 140,000, not including the other electronic book formats such as eReader and RTF, and downloadable text in HTML format (Nagle, 2007). In any case, the number of downloads can reach hundreds of thousands, and this only includes books from one website and works within the public domain.

Another popular source of free e-books is Project Gutenberg (Project Gutenberg, http://www.gutenberg.org/wiki/Main_Page) which claims to have over 2 million downloads every month.

2.8.2 Emerging Distribution Channels and Markets

As discussed in the distribution channel section, the Internet is becoming to impress its influence among UK consumers; book sales online experienced an 11% growth in 2001 and continues to be significant till date. Although some online start-ups wanted to take advantage of the UK market, most of them were adversely affected by the dotcom bubble in the 1990s. Expectedly, Amazon.co.uk is the top online seller of books in the UK (Books and Publishing – United Kingdom’, 2003).

2.8.3 Developments in Technology and Concerns in Copyright and Production

Technological developments have largely affected the books and publishing industry. As previously mentioned, technolo

The Transformational Process Model

A contrast of the transformational process model as it applies to the manufacturing (car manufacturing) and service (advertising) industries.

Slack et al provide a model which assists in understanding the transformational process. Their model looks at the transformation of inputs into outputs of goods and services and the range of activities and operations that an organisation undertakes as part of this process. Slack et al’s transformational process model is robust enough to apply to both manufacturing and service industries and it is perhaps in contrasting these two areas that one is best able to understand the usefulness of their model.

In simple terms, Slack et al’s the transformational process model deals with the process involved in transforming an input resource into an output good or service (Slack et al, 2001, p.9). A generic transformational process model can be set out as follows (Slack et al, 2001, p.10):

The above generic input-transformation-output model applies to the operations of most organisations. However, as with any generic model, it fails to sufficiently differentiate between subtleties. As such, when considering differences between different types of operations (ie manufacturing and services) and then considering further differences within those different types (ie different types of manufacturing operations), it is necessary to expand on the generic input-transformation-output model set out above.

In terms of the generic transformational process model set out above, it is important to note that inputs to the process will either be “transformed” or “transforming” resources. Slack et al define “transformed” resources as being “the resources that are treated, transformed or converted” (for example, materials, information and customers) and “transforming” resources as being “the resources that act upon the transformed resources” (for example facilities and staff) (Slack et al, 2001, pp.10-11).

Slack et al note that in most cases, one of the transformed resources takes precedence over the other two. So for instance they note that while a bank devotes some of its time to processing materials and customers, its main focus is on processing information (Slack et al, 2001, p.11). However, it should be noted that in a modern, inter-dependant economy, it is unlikely that any organisation is able to operate without touching on each of the transformed resources and as such, the issue becomes one of the extent to which the other transformed resources are touched upon rather than whether or not an organisation’s operations touch on them at all.

With respect to transforming resources, Slack et al refer to two types which form the “building blocks of all operations”. These are “facilities”, “the buildings, equipment, plant and process technology of the operation” and “staff”, “those who operate, maintain, plan and manage the operation” (Slack et al, 2001, p.11). Slack et al note that the transformation process is closely connected to the nature of the input resources which are being transformed. The three predominant types of operation processors are material processors, information processors and customer processors. Material processors predominantly transform the physical properties of the input resources, but may also change their location, their possession or store the materials. Information processors transform the informational properties of the input resources, the possession of the information, store the information or change the location of the information. Customer processing operations may change the physical properties of the input resource, store the resource, change the location, change their physiological state or their psychological state (Slack et al, 2001, pp.12-13).

However, it is important to note that each macro organisational process also consists of numerous micro organisational processes (eg marketing and sales, set and props manufacture, engineering, production units and finance and costing) each of which contribute to what Slack et al (2001, p.19) refer to as the “end to end business process”. The flow of information, materials and/or customers throughout this end to end business process is often extremely complex. In terms of operations management, understanding that the transformational process model applies both at the macro level and at a micro level allows an organisation’s management to ensure that managers at all levels within the organisation understand that to a certain extent they are all involved in ensuring that their operation involves a transformational process and that it is only where the transformational processes of all these micro operations operate smoothly that the macro transformational process can be successful.

It should also be noted that in many cases, organisations seek assistance from external organisations with respect to those micro processes. Thus for instance, an advertising agency provides a service which a large car manufacturing company may process internally. Or for instance Nike, which is thought of as a shoe manufacturer, is in fact a marketing processor specialising in shoes (the manufacturing of the shoes is, while done to Nike’s specifications, performed by external contractors with Nike concentrating on developing and maintaining their brand image).

Slack et al (2001, pp. 18-19) refer to three core functions as transformation process operations. These are “product/services development function”, “operations function” and “marketing function”. The product/services development function involves “designers design software -> producing effective new products and services -> appropriate designs as promised and to budget”. The operations function involves “transformed/transforming resources -> producing service value for customers -> products and services”. The marketing function involves “sales people marketers market information -> producing sales and market plans -> orders marketing plans as promised and to budget”.

As noted above, different types of operations (ie manufacturing and services) will involve different types of inputs, a different transformational process and result in different types of outputs. In order to compare how these differences are covered by Slack et als transformational process model, it is perhaps best to compare and contrast two specific examples. In this case, it is intended to compare and contrast differences between the transformational process of a car manufacturing operation (manufacturing) and an advertising agency (service).

In terms of the basic input-transformation-output process, a car manufacturing and advertising agency’s operations can be described as follows:

Operation

Input resources

Transformation process

Outputs

Car manufacturing

Steel/plastic/other materials

Car manufacturing equipment

Machine operating staff

Car manufacturing plant

Design and procurement

Fabrication

Assembly

Testing

Distribution

Cars

Advertising agency

Creative staff

Admin staff

Computer systems

Information

Customers

Offices

Client solicitation and pitching

Creative production

Delivery

Account

management

Advertisements

Increased sales

One of the fundamental differences between the transformational process of a car manufacturing operation and an advertising agency is balance between facilities and staff resources. The car manufacturing operation will have much of its investment in physical facilities with the focus of operations managers in such an organisation being on ensuring that those facilities are operating smoothly. The transformational process for a car manufacturing plant is a technical/mechanical process which should run exactly the same every time. While there is creativity involved in the initial design stage of the vehicles and parts, the fabrication stage should involve no creativity and will essentially follow a set process which is repeated hundreds, if not thousands, of times each week with the purpose being to lower costs by automating the same repeated tasks. While staff in a car manufacturing operation remain important, their importance is secondary to the operation of the facilities themselves (ie should there be a problem with the operation of the facilities, the staff are not in a position to continue assembling the cars on their own – ie their effectiveness is directly linked to the effectiveness of the facilities themselves).

Conversely, the importance of facilities to an advertising agency is entirely secondary to the importance of the staff that it employs. Preparing an advertising campaign is a largely creative process which varies from client to client and which does not therefore lend itself to automation. Due to the creative nature of an advertising agency’s work, should the facilities of an advertising agency for some reason become temporarily unavailable, it should be able to continue its operations using the same staff.

Naturally, the importance of the less important transforming resource should not be underestimated and it is not the case that either of these two operations can continue without both transforming resources. Rather, it is that one of these transforming resources is more fundamentally important than the other. For instance, while an advertising agency’s staff should be able to continue with their transformational work even where the facilities they have been using are temporarily unavailable, it is highly likely that their transformational work will be less effective especially where the unavailability of facilities involves not only office space, but more importantly, informational resources such as computer systems, market research information, etc. Likewise, while a car manufacturing operation can replace staff that for instance, go on strike, the efficiency and effectiveness of newly employed staff will be lower than those who have experience working with the machinery and the organisation’s operational process. The point is that the balance for a car manufacturing and an advertising agency are different between facilities and staff and so too are therefore each organisation’s operations management concerns (Slack et al, 2001, p.12).

With respect to the transformational process, a car manufacturing operation is predominantly a materials processor while an advertising agency is predominantly an information processor. A car manufacturing operation transforms the physical properties of the input resources involving the input of steel, plastic, and other materials the nature or which are then physically transformed into cars. An advertising agency on the other hand deals with information as its input resource (for instance, market research, demographic data, previous advertising campaign effectiveness, customer aims, etc) and transforms these into advertising campaigns the goal of which is to increase its customers’ sales.

The operational outputs also differ substantially as between a car manufacturing operation and an advertising agency. Perhaps the most profound difference is that the outputs of a car manufacturing operation are an actual tangible product while for the advertising agency it is an intangible service. The difference between these two types of outputs affects such considerations such as storability, transportability, simultaneity, customer contact and quality (Slack et al, 2001, pp.13-14).

Clearly a car has a degree of tangibility that an advertising campaign does not. This means that a car is able to be stored and transported. Likewise, the car manufacturing process involves production well before the customer ever sees it while with an advertising campaign, the psychological aspects occur simultaneously with its execution. As most customers will purchase a new car from a manufacturer’s own branded car yard, there is some contact between customer and manufacturer (more so than with other types of manufacturers such as for example household appliances where the manufactured good is sold via a third party retailer with no relationship with the manufacturer). The integrated supply chain for car manufacturers also affects the quality in that whereas with other manufactured products, the relationship between manufacturer and customer is more distant, the integrated supply chain for car manufacturers means that the customer is more likely to judge the quality of the operation from the quality of the product (although still not to the same extent that they would for a pure service such as a hair cut).

Slack et al (2001, p.15-16) note that all operations fall somewhere within the spectrum between pure goods producers and pure service producers, with most operations producing a mixture of both products and services. They propose that each producer has a predominant type of output and that any peripheral output for that producer is referred to as a “facilitating” output. That is, for a goods producer, any services produced shall be “facilitating services” (eg technical advice) while for a services producer which produces peripheral goods (eg report and documents) these represent “facilitating goods”. This is perhaps a dated view of such operations which Slack et al acknowledge when noting that the distinction between services and products is becoming increasingly difficult to define. Perhaps a more accurate distinction is between the types of processors (ie materials, information and customer) rather than simply between goods and services.

In reality, many service operations (especially information processors) do produce a tangible output which can be stored (for instance a travel agency will produce a booking which is reflected in a physical itinerary, a law firm will produce legal documents, a bank will produce bank statements, etc). It is generally customer processors (such as theme parks, theatres, public transport, airlines and hotels) which do not produce a tangible output which can be stored. In many ways, with the advent of the information revolution, the outputs of information operations have come to more closely resemble to outputs of traditional manufacturing operations more than traditional service operations.

In general, a distinction needs to be made between services which produce a tangible output and those services which are consumed at the same time as they are produced. While both these operations fall within the overall heading of “services”, their natures are entirely different. The main difference between an information processor service and both material processors and customer processors are that an information processor’s output is not unique. That is, an information processor’s output is generally able to be copied at no additional cost. This can be contrasted to a material processor’s output such as a car or a customer processor’s output such as a haircut. Neither a car nor a haircut can be reproduced without additional inputs being used and the transformational process starting again at substantial cost. An informational output on the other hand, such as a legal document or a song can be reproduced an unlimited number of times at minimal cost and without the need for the original transformational process to be repeated (although large scale copying may require an additional transformational process eg producing CDs and DVDs).

With respect to a car manufacturing operation and an advertising agency, both produce an output which is (arguably in the case of the advertising agency) tangible (ie cars and an advertising campaign respectively) although one is clearly much more tangible than the other. However, both the manufactured car and the advertising campaign loose relevance as time progresses and as such, the intention for both operations is to transfer the finalised output from the organisation responsible for processing the input onto the customer. The longer this transfer from processing operation to ultimate customer takes, the less relevant within the marketplace their outputs become (this statement will clearly not apply in certain cases for instance prestige cars which may increase in value the longer they are stored).

The fundamental differences between a car manufacturing operation and an advertising agency have important implications on an organisation’s operations management. Both the advertising agency and car manufacturing consist of transforming resources facilities and staff. The difference is in the input of transformed resources as the car manufacturing is predominantly a material process and the advertising agency an information processor. The transformation process in operations is closely connected with the nature of its transformed input resources. Outputs from the transformation process are goods and services with the main difference being that an advertising agency provides a service while a car manufacturer produces a good. The difference in tangibility of the outputs also has an affect on storability, transportability, simultaneity, customer contact and quality.

BIBLIOGRAPHY

Slack, N., Chambers, S. & Johnston, R. (2001), Operations Management, 3^rd ed., Prentice Hall, Harlow, England

The rule of law and the separation of powers have a particularly important role to play within the UK’s unwritten constitution. They allocate and restrain power so as to ensure that the constitutional system remains accountable and limited.

It is a common observation that the UK does not have a written constitution. However, it is the existence of mechanisms such as respect for the rule of law and the operation of a (more or less) rigorous separation of powers together with devices such as constitutional conventions that allows this jurisdiction to lay claim to the existence of a constitution albeit one which is not formally recorded in a written document.

Bradley and Ewing^[1] analyse the rule of law by focussing upon three aspects of its operation in contemporary society: the simple maintenance of law and order; the requirement that government be conducted according to the law; the broader concept of the rule of law as a broad political doctrine which goes beyond an analysis of the operation of particular laws and encompasses the values of a free and democratic society. The “law and order” model which holds that order is better than anarchy. The difficulty with this approach is that it is possible thereunder to characterise a military dictatorship as functioning according to the rule of law since a form of order is maintained and courts may even continue to function to resolve private disputes between citizens. However, the authors make the point^[2] that “…constitutionalism and the rule of law will not thrive unless legal restraints apply to the government.”

A better approach is to examine the manner in which the courts have the ability to challenge the acts of the Executive and other public authorities. The use of judicial review to scrutinise the actions of Ministers and Government Departments is familiar. Further, in M v Home Office^[3] it was even held that a Minister of the Crown could be guilty of contempt of (one of Her Majesty’s) Courts. The argument that the courts had no such powers against ministers met with a stinging rebuttal:

“[This argument] would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.”(!)

The principle has been further reinforced by the adoption of the European Convention on Human Rights which now provides a mechanism by which the very laws of this jurisdiction can be examined to ascertain their “lawfulness”.

The concept of the rule of law as a broad political doctrine has generated much debate. One the one hand, it is possible to argue that the law comprises a set of absolute values distilled from centuries of legal experience; on the other it may be argued that the rule of law is a flexible concept which has to be adjusted in accordance with the prevailing social and political circumstances of the time. Professor Joseph Raz^[4] argues that the rule of law is a “political ideal which a legal system may possess to a greater or lesser degree” and that it is “just one of the virtues that a legal system may possess and by which it is to be judged”. Raz therefore does not invest the rule of law with any inherent moral authority stating expressly that it “is not to be confused with democracy, justice, equality (before the law or otherwise) human rights of any kind…” While this approach may be highly respected from a jurisprudential perspective, it is of little value in understanding the operation of the rule of law in the UK constitution. A far more preferable and workmanlike analysis is that of Friedrich von Hayek in the seminal work The Road to Serfdom^[5]. He propounds the thesis that the function of the rule of law is to ensure that the government is bound in all its actions by rules fixed and announced beforehand. Such a state of affairs makes it possible to predict how the government will employ its coercive powers in a given situation and to plan one’s individual affairs on this basis. Thus the rule of law in the UK constitution is founded upon certainty: laws are democratically debated and publicly promulgated and, as a general rule, do not operate retrospectively. The UK citizen is therefore protected from the “whim of the tyrant” approach to lawmaking and has the added shield of the power of the courts (domestic and European) to review government action and the validity of the laws themselves.

In order for such a system to be maintained, especially in the absence of a written constitution to which recourse may be had in the event of alleged injustice (as in the USA), it is essential that there be a clear separation of powers between the three branches of government: Executive, Legislature and Judiciary. This separation is clear cut in the USA – the President forms the Executive, Congress is the Legislature and the same personnel cannot serve in both (save that the Vice-President chairs the Senate). Government action can be reviewed by the Supreme Court. In the UK, as might be expected given the historical evolution of the constitution as opposed to its imposition by a written document, there are certain anomalies and overlaps. By constitutional convention, the Prime Minister is the leader of the party with the majority in the House of Commons. Ministers of State are recruited for the most part from members of the Commons with a smaller number from the Lords. The system of party political “whipping” has the result that (save in the case of occasional highly-publicised rebellions) the actions of the Legislature reflect the will of the Government of the day. The Judiciary is more demonstrably independent and some would argue that this is now the more so as a result of the steps to relocate the functions of the highest appellate court in the UK from the Judicial Committee of the House of Lords to an entirely distinguishable Supreme Court. This process has generated much political and constitutional heat. It was strenuously argued that the presence of the Law Lords in the legislative assembly of the House of Lords was offensive to the concept of separation of powers. However, defenders of the status quo pointed to the fact that their Lordships by convention scrupulously refrained from debate upon issues which were likely to come before them in their judicial function. However, Lord Bingham^[6] is sceptical as to the purity of the function of the judiciary:

“The essential function of the court is then to interpret the law which it infers that parliament intended to make or would have made if it had addressed the point at all. This is not as legislative role, nor is it a purely interpretive role, since the court may have to do a good deal more than elicit the meaning of what parliament has enacted.”

The most glaring anomaly in relation to separation of powers in the UK has been the figure of Lord Chancellor. He has served as a member of the Executive by sitting in Cabinet, as a member of the Legislature by acting as Speaker of the House of Lords and as head of the Judiciary. It has been observed^[7] that successive Lord Chancellors have relied upon the “characteristically English argument” that eminent public figures can by definition be trusted so that a formal separation of powers is not required. This argument was propelled to new depths of disingenuousness by Lord Irvine in 1999^[8] when he suggested that the presence of the Lord Chancellor straddling all three branches of government actually safeguarded separation of powers by supplying a voice in the Executive and the Legislature that was able to speak out on behalf of judicial independence.

As with the rule of law, the European influence may be argued to strengthen rather than diminish separation of powers. Lord Irvine^[9] argues that:

“Incorporation [of the European Convention on Human Rights] will enhance the judges’ power to protect the individual against the abuse of power by the state. We have a high quality of judicial review in this country. It has often rightly held the executive to account and improved the quality of administrative decision-making. So the concept of judges protecting the citizen and holding the executive to account is nothing new. What is new is that the judges will be given a framework by parliament within which to interpret the law.”

Thus it may be concluded that, notwithstanding the lack of a written constitution, the UK citizen is protected from capricious and unlawful acts of government by respect for the rule of law. This should not be regarded as an abstract philosophical concept: the principle operates within this jurisdiction to ensure that acts of government are transparent and predictable. When they fall short of these standards, the fact that there is a demonstrable independence of Judiciary and Executive (as has been seen the independence of the Legislature from the Executive is more questionable) means that the actions of government can be challenged and, if necessary, overturned. These various constantly evolving mechanisms ensure that the exercise of power within the UK constitution is accountable and limited.

Bibliography

Alder, J., General Principles of Constitutional and Administrative Law, (4^th Ed., 2002)

Allen, M. & Thompson, B., Cases and Materials on Constitutional and Administrative Law, (7^th Ed., 2003)

Barnett, H., Constitutional and Administrative Law, (5^th Ed., 2004)

Bradley, A. & Ewing, K., Constitutional and Administrative Law, (13^th Ed., 2003)

1

Background:

General Introduction to Topic: This study is two fold; firstly it relates to a personal interest as an early years practitioner and secondly a professional resolution to understand the role of the practitioner and the influence the individual can have on children’s learning.

For effective learning within early years settings, identification of how the practitioner affects children’s learning needs to be recognised (Rodd, 2000:7). How the practitioner can influence the behaviour of others, particularly staff and children, to contribute to a creative early childhood programme. It is paramount the practitioners work collaboratively together within the same organisational goals to create a community enriching children’s personal growth and progress, which enhances the practitioners’ expectations and individual standards (Rodd, 2000:8). I feel passionate concerning the recognition of the practitioner’s role influencing on children’s learning and the factors that may contribute to this.

Within the educational institution, the power of success of the student relies on the strength of the curriculum. The content of the curriculum has to entice and engage the learner, who will respond with motivation and focus. A poor, unsuccessful curriculum, is one that is unchanged over years, and will suffer unless new educationalist are pro-active in bringing current trends into play, which is normally the case. New fresh ideas and approaches to old problems bring new life into any task, for a synthesis of theory and practice is necessary because theory without practice is dead, whilst practice without theory has no direction (Bruce, 1987).

The complexity involved in learning is discussed and covered by many, and the direction of improvement is always under investigation. In 2005, the Government announced plans to merge the Birth To Three Matters Framework and the Foundation Stage, to form a single Early Years Foundation Stage covering care, learning and development in all early years settings from birth to age five. (Literacy Trust, 2006) Can this produce the desired effect on learning. There are several different styles of learning which are examined here and aspects are highlighted, including the term Learning Power (Deakin Crick et al, 2002) which sets out to explain with extensive research, observation and experimentation that a series of unique dimensions exist.

These dimensions are Changing and learning

Creativity

Critical curiosity

Fragility of dependence

Learning relationships

Meaning and making

Strategic awareness

From these dimensions and their descriptions resulted a useful language, one for the ‘naming of something’ that fills a gap within education to provide an excellent dialog of the quality between teachers and their pupils. By successful inclusion this language could enhance the learning power of the pupil by the development of self-awareness; to encourage and produce responsibility for one’s own learning; and to ultimately improve and support all the relationships of learning and assessment.

Research for this whole study involved investigating current policy and identifying up-to-date literature. Conducting this research I discovered a gap in literature concerning the specifics in my study. Examining books, journals, articles and Internet websites for archive information relating to the practitioner’s role I discovered limited data that discusses this issue. I decided to analyse the factors that can contribute to the practitioner’s role and how it has shaped the modern early years practitioner. I was interested in how the role has developed and what shaped the 21^st century practitioner, this lead to the factors that attribute to this evolvement.

Factors that may influence a Practitioners Role:

How the practitioner’s role has developed
Type of Setting; impact on practitioner’s role effecting children’s learning
Age and Experience of Practitioner; whether this has any bearing
Government Policy; the changes effecting a practitioner’s role

As my study became broader I explored factors such as the shaping of early years practitioner’s and what contributed to this, became as important as the original research question. As I researched my aims became defined, breaking down the elements to reach clear objectives for each aim.

Aims:

The principle aims of this research are:

To analyse the role of the early years practitioner in relation to children’s learning.
Explore a range of early years practitioners.
Investigate what they do and determine whether their role is the same or diverse in the context of various settings.
Examine how the profession has developed.
Analyse Government Policy to determine whether this affects the practitioners’ role.

The aims are intended to provide a broad indication of the purpose of the research, (Fitzpatrick, 1998:153). To clarify the criteria I aim to determine precise statements of intent by sub-dividing the aims into objectives, as follows.

Objectives:

To conduct in depth, semi-structured interviews with a sample of 12 practitioners who have worked for at least 2 years (this is due to practitioner’s requiring the experience in order to respond to questions relating to their role).
To conduct this research using practitioners of varying age and experience to determine whether these variables have any bearing on practitioners influence on children’s learning.
To investigate a range of settings; High Scope, Montessori and The Foundation Stage to determine whether the settings curriculum model influences learning and changes the practitioner’s role.
Investigate the changing role of the Early Years practitioner. Reflecting on historical and contemporary issues.
Reflect on Early Years policy and practitioners role.
Research Design:

Method and Methodology: To indicate the practical ways in which my research project will be organised, including an impartial appreciation of the strengths and weaknesses that may arise. Within my study I aim to put strategies into place that will minimize the disadvantages for the methodology used and to enhance the advantages (Oliver, 2004:135).

I plan to carry out a study involving 12 participants, who work within varied early years provisions; these participants must have at least two years post qualification experience. I have chosen this length of service to establish realistic expectations and feelings of individual’s. The provisions must be varied therefore I have chosen three separate settings; High/Scope, Montessori and The Foundation Stage (learning through play), within these provisions I aim to use in-depth, face-to-face interviewing of four practitioner’s conducted at their settings. This method is appropriate as it allows for flexibility (Robson, 2002:278) and freedom with responses. Using semi-structured questions including some structured questions, such as, standard factual material. An additional reason for using a qualitative method is that individual’s insight of a particular workplace can be analysed^[1]. The disadvantages are numerous; one example is the reliability of the participant’s responses and the lack of standardisation that will inevitability arise with a semi-structured interview technique.

I plan to contact the selected settings asking for permission to conduct in-depth interviews explaining the reasons for the study. To explain the reasons for the research within the setting, acknowledging the interviewee’s sense of comfort in a familiar environment. It may relevant to send a sample of the questions to allow the participants to prepare.

After the interviews and data collected and transcribed, the analysis begins. The use of content analysis may be a worthwhile method for its effectiveness when examining text materials^[2]. However, there are advantages and disadvantages. Advantages include; the data is fixed and allows for re-analysis and reliability checks. Disadvantages include; limited data may be difficult to assess as the participants are casual acquaintances and therefore responses may only be reflections of an individual (Robson, 2004:358).

Another method is using a quantitative strategy after gathering the data, placing gathered information into charts, graphs etc to determine the percentage of same responses. This makes research data manageable and easy to read, in essence using methodological triangulation; combining qualitative and quantitative approaches^[3]. I am aware of various epistemological positions that I could adopt reflecting a different approach to the research question (Cuba et al, 1994:99), however, these methods appear appropriate and suitable to the research question.

Literature Review:

Although the study being conducted is fairly localised, this strengthens the research for the widening debate for exploration of the significance of the study (Oliver, 2004:98); for example, investigating Government policy and its impact on practitioner’s role. The literature is relevant to the project to make it easier to read I have sub-divided it into categories:

The Role of The Practitioner
Curriculum / Learning and Education
Theorists

The Role of the Practitioner

I found limited literature that dealt with the issue of the practitioner’s role in children’s education as a result I expanded my research^[4]. Examining the books available (Rodd, 2000:9) suggests there is limited literature on the practical application of a practitioner’s role. This lack of information is important in relation to understanding the early childhood context and the practitioner’s role within it. The limitations in current literature need to be explored rather than omitted^[5]. By this statement Rodd (2000:9) implies the role is an important one in shaping children’s learning. In agreement, Riley (2004:24) suggests, practitioner’s interaction levels are of the prime importance in children’s learning^[6]. This literature signifies the importance of the practitioner’s role when involved in children’s learning. Both books detail the positive aspects of practitioner’s involvement, such as developing curriculum practice to allow spontaneous learning and free choice. Riley (2004:24) compares her findings to another study (Tizard and Hughes, 1984 as cited in Riley, 2004:24) where supporting open-ended questions provide a framework for conversation with the child. The importance of the practitioner’s role is also emphasised in (Manning-Morton et al, 2003:155) who suggest, the practitioner has a crucial role in children’s learning^[7].

This application of the practitioner is quite varied including taking on the role of psychologist, for many of the assessments made with regard to entry into the present Foundation Stage is by observation.

Curriculum / Learning and Education

The second category focuses on the curriculum and the part the practitioner plays in successful implementation^[8] without this a stimulating environment is not fostered and therefore hinders children’s learning. In summary the literature details the responsibility the practitioner has in shaping children’s learning in meaningful contexts that are appropriate and suitable. The authors discuss the importance of multi-professional collaboration^[9]. This signifies the importance of practitioner’s working together to create an environment that enriches children’s lives. With practitioner’s that are motivational in delivering an effective learning environment supporting children to reach their full potential now that will carry on through the years, or in other words to start the pathway for Lifelong Learning. The responsibility of implementing a successful learning programme depends not just on the practitioner, nurturing minds, having a positive effect^[10]. The literature supports the practitioner’s intervention for effective learning, where situations and surrounding play an important part.

The differences in our situations and surroundings that we live in are factors that influence our quality and quantity of our learning process, and this process encompasses social, moral and academic learning. (Child, 1997)

This effective learning process of Lifelong Learning, was brought into the open through employment and employers throughout the last decade of the 20th Century where changes of technology and cultural issues came about in the workplace (Crompton, Gallio, Purcell, 1996). To begin with, in 1996, the European Year of Lifelong Learning, the British government published a Policy Framework for Lifetime Learning (DfEE, 1996). Enhanced by the Fryer Report (National Advisory Group for Continuing Education and Lifelong Learning (NAGCELL) in 1997), and which surprisingly was omitted from the Dearing Report (NCIHE 1997) as sanctioned by the government with National Higher Education. Although well criticised, the report contained recommendations and targets for education and training that set out to motivate and enable learners to develop and benefit in society. Overall it outlined the aims to be sustainable, and to finally shape a democratic path. In parallel to all this was a negative that was highlighted by Elliott (1999) who stated that educationalists and the policy makers had on occasions ‘hijacked’ the phrase Lifelong Learning for other reasons. Reasons which came out from their own agendas, producing a system of their self-interest which resulted in being an obstacle and destructive to learning.

The learning process of development has been under investigation for many years. The British Cohort Study (BCS70) as far back as 1970 confirmed that a pre-school program generally increased cognitive attainment for children of 5 years of age. Yet did not prove a great difference within disadvantaged children (Osborne & Millbank, 1987). Research also found that the social adjustment and language was poor at the age of 5, and also showed that inferior reading skills were present at the age of 11. Feinstein et al (1998) showed that in education during the years of 1962-1973 the pre-school contribution made no improvement to children entering secondary school. Now some thirty years on pre-school is taken as an important part of amongst others learning the social skills to prepare for formal education.

Comparing types of provision, such as Montessori and High/Scope was by way of literature and via Internet websites^[11]. Analysing these became a framework for an alternative curriculum implementation, detailing the practitioner’s role and the methods used for a successful ethos. The High/Scope regime is an “active learning” educational approach^[12], the child’s interests and choices are at the heart of the programme, where the central model of learning is the ‘plan, do and review’ cycle.

The High/Scope educational approach for infant-toddler, preschool, elementary, and youth programs is a set of guiding principles and practices that adults follow as they work with and care for children and youth. These principles are intended as an “open framework” that teams of adults are free to adapt to the special needs and conditions of their group, their setting, and their community. “Active learning” — the belief that children learn best through active experiences with people, materials, events and ideas, rather than through direct teaching or sequenced exercises — is a central tenet of the High/Scope approach for all age levels.

(High/Scope, 2005)

They construct their own knowledge through interactions, planning their activities for the day in a small group with a teacher or ‘educator’. Each small group will have a ‘keyworker’ a member of staff assigned full time to them, so although they work with different adults, the children in the group have the security of a central relationship. Later in the day the whole group will review their progress, and as language is central to learning, so children describing both plans and activities to each other becomes very beneficial.

So with the whole group being involved in undertaking the first steps in the learning process, out of high-quality early years environment come the development of feelings for high self-esteem, with high-aspirations and secure feelings of self-efficiency. Believing in their own capability to start solving problems, to understand new ideas, and develop new skills. The result being, that the children feel in control of their environment and grow in confidence with their abilities. This pattern continues in focused adult/child and child/child conversations, placing the responsibility very much on the individual child for their own learning, whilst the practitioner’s offer physical, emotional, and intellectual support. So taking on Vygotsky’s notion of ‘effective instruction within the zone of proximal development’ (1993, p.36).

Summarising the Montessori method this includes education of the senses; the aim is two-fold, biological and social^[13]. The Montessori environment is solely linked with natural objects for children to explore and investigate in their first seven years. The practitioner’s role is to support children within their access of objects and environment. The DfES Foundation Stage ethos focuses on learning through play and learning intentions to support children through stages of achievements. The practitioner’s role is to support children’s progress through each stage by implementing activities and opportunities to extend their learning through a play environment. Each curriculum requires the practitioner to be motivational, enthusiastic and knowledgeable in their field.

In 1998 the introduction of a National Literacy Strategy (NLS) for school years 1-6 was undertaken, and with it came considerable pressure being placed on schools to implement this program, following which most primary schools have continued to adopt it. The National Literacy Strategy (NLS) has a central core, which is the framework for teaching that covers the statutory requirements in reading and writing within the National Curriculum. The school curriculum comprises of all learning and other experiences that each school will plan for its pupils, and the National Curriculum is an important element of that school curriculum. The NLS provides a framework of pre-specified objectives that revolve around: text, sentence and word level work which are delivered via a daily structured hour long session, which is termed ‘Literacy Hour’. Following this introduction Primary teachers are now urged to support and conform with this prescribed teaching pattern, in fact practitioner’s are now being told not only what to teach, but also how to teach it.

‘Education influences and reflects the values of society, and the kind of society we want to be. It is important therefore, to recognize a broad set of common values and purposes that underpin the school curriculum and the work in schools.

If schools are to respond effectively to those values and purposes, they need to work in collaboration with families and the local community, including church and voluntary groups, local agencies and business, in seeking to achieve two broad aims through the curriculum. These aims provide an essential context within which schools develop their own curriculum, and are outlined as follows:

Firstly the school curriculum should aim to provide opportunities for all pupils to learn and achieve.

Secondly the school curriculum should aim to promote pupil’s spiritual, moral, social and cultural development and prepare all pupils for the opportunities, responsibilities and experiences of life.’

The National Curriculum, Key Stages 1 & 2. 1999 DfEE

Despite all this, a report undertaken by the Association of Head Teachers [2003] claims there is a mounting concern amongst teachers about the effects of this Literacy strategy. Arguing that formal teaching as prescribed through the Literacy Hour, is developmentally inappropriate for many 6 year olds, and therefore recommends that the principles of the Foundation Stage be extended to cover all children aged 3-7 years.

In enhancing this thinking, going back to 1996 where the Department for Educational Studies (DfES) funded the undertaking of Effective Provision of Pre-School Education a longitudinal study that was for children of 3 to 7 years of age. Where it majored on pre-school through into primary assessing from a cross-section of social backgrounds. This complimented another undertaking in Findings from the Early Primary Years (EPPE Summary 2004) that collected data from children, their parents, their home environment and the pre-school they attended. All of which went on to prove that cognitive and social effects were positive for the children going into primary school.

It was found that parent’s education and social class remained as predictors of intellectual and social development, and that very long periods of pre-school were connected with anti-social behavioural problems entering primary school and through to the end of Key Stage 1. This fact was attributed to the presence of non-parental childcare before three years of age. The education level of the child’s mother was seen to be a factor in the child’s performance. Overall, it reported that the attainment reached in reading and math’s from an effective, high quality pre-school attendance, proved a positive impact which was not depleted by the end of Key Stage 1, and that attendance before the age of 3 was very positive towards the child’s attainment.

By continual research key findings within the EPPE Summary of 2004 over the pre-school period included that disadvantaged children may benefit appreciably from good quality pre-school experience, especially when they are with a mixture of children from different backgrounds. It also went on to show that overall, disadvantaged children have a tendency to only attend pre-school for short periods of time compared to those from more advantaged groups. From this result recommendations were made: i) To develop and encourage more episodes of ‘sustained shared thinking’ with the children. Use of freely chosen play activities provides the best opportunities to extend children’s thinking. ii) Continually work towards an equal balance of child and adult initiated activity. iii) Develop staff to have both the knowledge and understanding of child development and the curriculum.

By way of a pilot scheme, in 1998 parts of England by the National Literacy Strategy (NLS), which was a direct result of nationwide poverty implications in 1966, all infant and primary schools were expected to teach English within what was termed the Literacy Hour. The hour was divided into segments to allow teaching as a whole class, as groups or individuals, with the focus for each segment also prescribed in detail: children being taught reading and writing at whole text, sentence or word level. Teaching objectives had to be included in this daily Literacy Hour with the class. The format is dictated to being the same for Year 1 through to Year 6.

Reaction from teachers, many unprepared to teach this due to lack of time, were concerned and uneasy over several issues, and some reported that time spent in other curriculum areas were affected. A perceived lack of flexibility about the Literacy Hour was commented on unfavourably, with fears voiced of the possible negative effect resulting from six years of children being taught in the same way (Anderson & Urquhart, 2000)

The feedback on this, Hourwatch, was undertaken from the autumn of 1998 through to the summer of 1999, from a cross-section in Year 1 and Year 2 at Infant School, and reception class and year 6 in Primary School. The feedback from teachers was not favourable. Planning of group activities took a considerable extra time to prepare. Overall the framework objectives for the hour resulted in a lack of coherence, making implementation time consuming, out of all proportion to its share of the curriculum, and generally uninspiring. One such response from an experienced teacher, remarked that although Learning Hour had some good points, “it was too rigid a structure, takes too much time to plan, too analytical, not matched to children’s current level of experience and skill. It gets boring following the same format day in day out, it does not provide enough opportunities for creative and extended writing, and it results in too much unfinished work” (Anderson & Urquhart, 2000) Overall the organizational and bureaucratic demands were overwhelming the educational value.

In 2000 the Government in the UK introduced a revised National Curriculum (Curriculum 2000) and the Foundation Stage that was for the 3 to 5 year olds, giving this period in the child’s education a distinct identity and attention. Curriculum 2000 emphasized inclusion, aiming to secure learners participation and ensure appropriate opportunities for them to achieve, and offered flexibility within for schools to develop their own normal curriculum. It offered a less prescriptive approach, in which flexible allocating of time for required subjects allowed them not to taught each week, term or year, therefore allowing choice of method and the maximising of teaching and learning.

A study of the transition from infant to Primary in England: from Foundation Stage to Key Stage 1 was carried out in 2005 (Sanders et al, 2005), where it was discovered the biggest challenge to children being the move from play-based approach in the Foundation Stage to a more structured curriculum in Key Stage 1. It also noted that the Literacy Hour had proved challenging as it was difficult for young children to sit still and listen to their teacher.

The ensuring of stability, has been promised and undertaken by the Government for this transition period, in understanding and support for staff training, the child’s learning and guidance for parents (DfES, 2003).

Researching journals on the subject was also limited with only one journal; Early Childhood Research Quarterly. This research^[14] discusses the aspect of practitioner behaviours in the environment and the practitioners’ application, detailing the importance of collaboration and an understanding of curriculum and learning. Reading the journal article shows a support for my research in as much that the role of the practitioner is vital in providing an effective learning environment for children to progress and grow.

In respect to how children progress and grow, a large portion learn, construct knowledge and develop skills, in today’s world of computers and computer games. The act of play for a young child is seen as being far more important, and in the past there have been successful arguments in the fore and against the time allocated for play in the early important years of a child’s education. Parents and school administrators always demand results, and yet question the value of a child playing. Educators and child development specialists endorse play as being the best way for young children to learn the ultimate curriculum for the social, physical and cognitive advancement needed to set a solid foundation for later school and life success in our increasingly complex and technological world.

The importance of play in a child’s development is shown to have various kinds of concepts (Wardle, 2000), each having their own strengths:

Motor/physical play – critical for the development of physical strength, and to establish a fitness regime against heath problems through being overweight in latter years.
Social play – interacting with others builds skills and underlines important social rules, including give and take, co-operation and sharing. All go towards moral reasoning and developing a mature sense of values.
Constructive play – the manipulation of the environment to experiment, build and create, resulting in accomplishment that empowers them with control of their environment.
Fantasy play – experimentation of language and emotions in an abstract world, where young children can stretch imaginations in a risk-free environment. This area of abstract time is believed to be so important in our growing technological society.
Games with rules – vitally important in a child’s development, to learn and understand that situations cannot exist without everyone adhering to the same set of rules. This concept teaches children a critically important concept, in that the game of life has rules (laws) that we all must follow to function productively (Wardle, 1987).

Government policy reflects the importance of the practitioner’s role with learning and education in early years settings. The proposed Childcare Bill introduced to Parliament on 8^th November 2005 supported a link between Foundation Stage (3-5 years), Every Child Matters, Birth to Three Framework and OFSTED National Childcare Standards for nurseries; combining these four documents^[15]. By placing early childhood provision on a statutory footing will assure practitioners’ of the Government’s commitment to improving early years provision. The Government recognise for the youngest children the distinction between childcare and education is indistinguishable. This supports my research by the Government recognising the important role the practitioner has in the welfare of children, in education and care.

In the UK this problem is being addressed by the Government taking on a ten-year strategy for childcare, published in 2004, which is now subject to Parliamentary Approval in 2006 (Education & Skills, 2006). It is the Government’s response to a fundamental challenge facing Britain in the need to ensure available, affordable, and high quality childcare in the 21^st Century. More women are going to work than ever before, they choose to work for increased family income that can improve lifestyle (out of poverty) and improve their children’s life chances. With the emergence of this new Childcare Bill the practitioner has to ensure their role positively shapes children’s learning in meaningful contexts.

Now in 2006 discussion and assessment is well underway for the Early Years Foundation Stage that will start in 2008. In 2005, the Government announced plans to merge the Birth To Three Matters Framework and the Foundation Stage, to form a single Early Years Foundation Stage covering care, learning and development in all early years settings from birth to age five.

Are the lessons that have been learnt by the government ministers over the years now going to lay correct foundations for the practitioners to deal with? As childhood is not merely a pe