Do you understand the impact that this Government, Brexit & the Pandemic has had on your rights; do you even understand your rights?

You know, we Travel commentators are a fairly sanguine lot. We provide fairly balanced opinion, views and experience for Consumer consumption, and answer the beck and call of newspapers or other media, for a quote on some crisis in Travel, offering balance in the feeding frenzy of some latest moral outrage.

I’ve been involved in Travel commentary and have represented Travel Consumers for the last 25 years. There have been many ups and downs in trying to secure rights, and to deliver a sensible dialogue about what should be done to protect Consumers, but I can honestly say, I have never witnessed anything quite like the dialogue around Travel since 2010, the year the present government came to power.

Within weeks, they set about attacking what they saw was a ‘compensation culture’, particularly against Travel Consumers. Claims were made that Fraudulent Holiday Sickness Claims had risen by as much as 500%, yet my own analysis and that of my discussion with the Ministry of Justice at the time, suggested that such claims were potentially resting at less than 1% of all claims made. Indeed, a subsequent report from a Travel Company confirmed the figure of less than 1%, once changes were made to the methodology of calculating how fraud fitted into the overall numbers who travelled.

This new dogma, Industry good, Consumer bad, set in chain a wholesale, and in my opinion, an unnecessary set of changes, which the government and industry claimed, was designed to resolve the thorny issue of fraudulent claims and errant claims management companies.

It was one thing to challenge the ethical operations of claims management companies, but quite another to alter the ground rules by which ordinary people access their Consumer Rights, to the point, where it is now extremely difficult and cost prohibitive for anyone to access good legal advices to deal with their travel claims.

Consumers are now expected to take matters to court themselves; one such change involved the Unfair Trading Regulations where previously, the enforcement bodies would have been able to take up the mantle of complaint and deal with the companies directly. But, enforcement was never on the minds of this government, as they set about dismantling the complex structure of Consumer help and enforcement through de-funding, limiting their powers or simply closing them down or to be subsumed into other structures.

The average holidaymaker is not equipped to deal with what is a serious set of facts before any court, particularly the small claims court or through the nebulous structure of Alternative Dispute Resolution, which despite its claim, places the ordinary Consumer at a disadvantage, because the other side knows how to make the legal argument within the ADR structure. I also found over many years, despite the legal qualifications of the Arbitrators used, some simply didn’t have the travel expertise to deal with or understand Consumer issues.

Then the doctrine of Brexit hit town, with sweeping promises to ensure that you will never lose your rights, because they would be incorporated into UK law. Now I can find my way around government departments, but it took me 6 months to get clear answers to where and how the European Consumer Laws, which many took for granted had been placed onto the UK Statute books. In the meantime, members of the governing party are now falling over themselves to declare of bonfire of red tape, that’s regulation to you and me, to deliver a nothingness but the terms and conditions you will have to argue over - they intend to return you to the position that Consumers were in, prior to 1992. 

I’ll confess that it rankles that I find myself pointing these factors out to you, particularly as I warned about such developments from prior to the Referendum and up to the present day, being accused by some of being part of Project Fear, but then the Brexit apostles and their shock jocks would say that, wouldn’t they?

To demonstrate how weak your rights have become, we fast forward this journey to the Pandemic and Brexit-day. 

The pandemic delivered a complete collapse of any notion of enforcement of your rights, with the fear of collapsing companies trumping the fear of the loss of your monies. Vouchers, misinformation (both from the Travel Industry, Press and Politicians), or the on-loop poor customer service, left many feeling adrift and having to face complex legal arguments whilst the Consumer Minister was missing in action.

Then there’s been Brexit. Those of us in the know knew perfectly well that upon the UK government declaring that happy days were here again and that all COVID restrictions would be lifted, was the starting pistol for the hoped for return to normality. 

But, that did not reflect the reality of the world around us, nor indeed how you return an industry to normality after being effectively placed into mothballs. But, the Travel Industry, and they have to accept some of the blame for this, decided that 2019 passenger levels were entirely possible in 2022. The UK government didn’t assess nor guide the growing crisis, with the result at all the parties found themselves in the midst of utter chaos, jabbing the finger of blame at each other, which continues to this very day.

In the meantime, those that had serviced our 2019 travel needs and expectations had gone home; why should they stay when it was clear that they were not welcome in a sea of irrational immigration fears, accentuated by the government’s own failure to plan for their Brexit dreams.

In response to the crisis, the government and the Travel Industry have had behind closed door meetings, but not one single set of minutes has been produced about their discussions or decisions - you the Consumer are being kept in the dark!

Late in the day, the government produced its 22 point plan to alleviate the crisis - the best that can be said about that plan is that it is aspirational; it’s about the future, not the present; it seeks to encourage the Travel Industry to comply with Consumer Laws but does not deliver a strong enforcement to help Consumers. 

The CAA cries out that they need stronger powers to enforce, but they had those before Brexit day, particularly on Air Passenger Rights. Since Brexit-day, some of their enforcement powers appear to have been reduced, presumably someone in government, without any knowledge or understanding of the inter-connectivity of each legal provision thought these changes were a good idea?

Then, realising that there was real public disquiet, the government produced a Consumer Charter for Aviation. In my opinion this is by no means a Charter. It is simply a confusing and lengthy web-page, which does not link Consumers to the actual laws now found on the UK Statute books and is in any event only relevant to Aviation - what about other forms of transport? Remember, you the Consumer were promised the same rights you had when the UK was in the EU after Brexit-day.

As we know, Dover recently became a focal point for this Brexit chaos, because the rules of travel changed on Brexit day, but of course we didn’t see that effect because of the pandemic. The Shock Jocks were outraged - it was an evil plan concocted by the EU - the government’s own Ministers and MP’s cried insults at the French and the media bathed in their glory. However, if you read the Travel Advisories produced by the UK’s Foreign Office, you will have seen that the UK government had set out their policy and Brexit Changes very clearly for all to see - they knew what was going to happen, but an alternative dialogue is used to add to that confusion.

The dishonesty used by so many is very clear to see, but only if you are prepared to look beyond some of the newspapers you may read.

That turns me nicely to Consumers. I’m really sorry, but there is a real need to discuss what I am seeing. Anyone who knows me, knows full well that I rarely criticise Consumers, but sometimes it is necessary. What has struck me in recent weeks, is the sheer utter fatalism of Consumers. Shrugging their shoulders when faced with an intransigent airline or ferry company, simply accepting that there is nothing you can do or paying out huge sums of money to get from A to B without it seems having any real understanding how the system of refunds works. Many of these Consumers undoubtedly carried portable devices and could have searched for these “new” UK Consumer Rights (the Rights you had as European Citizens) and argued and enforced them, but clearly some Consumers did not. I have also found across the social networks, poor guidance being given by Consumers to each other - much of it completely wrong, but obviously relied upon by other Consumers, for example, referring to the 1992 Package Travel Regulations, that Travel Insurers will pay out for delays, that Trade Bodies will provide refunds or you can get delay refunds via ATOL (the Air Tour Operators Licensing scheme).

It got me thinking, how do the present-day Consumers compare to the Consumers of the 1990’s through to the early noughties?

The simple answer is that they don’t; I’m sorry, I know that’s harsh but bear with me. The Consumers of yesteryear were tenacious, unified and worked by representing themselves as groups to Travel Company reps, or when they returned home, through their local libraries and Consumer organisations, to establish their rights and many worked together to secure them successfully.

I fear the present day Consumer views him or herself as an island and unable to do anything to solve their Consumer Complaints. If my analysis is correct, then this in itself defeats Consumer Rights and only helps Travel Companies, Politicians and their acolytes, the shock-jocks!

So despite the problems you now face, I will now deliver a true Charter for all Travel Consumer Rights, one that is practical, knowledgable and if you follow its lead, will change your arguments with Travel Companies:

This 11-point Charter is based upon your former EU Consumer Rights, which were transferred onto the UK Statute Book on Brexit-day on 31 January, 2020. As I make references to laws or guidance notes, you will be able to find these easily when I publish this article as each one will be hyperlinked. You will find the link to this article in the description to this podcast when it is published:

1. At the time of your Travel Problem, make sure that you are familiar with the relevant rights found in this Charter - they will help you to understand what your rights are and how to ask for them;

2. When you are making your complaint at the time of your Travel Problem, make sure that you remain calm and courteous - remember, the person you are speaking to is human and deserves respect - their responses may be limited by the script they have been given by their bosses. That script may be wrong in fact or in law, so the rights contained in this Charter will help them to understand what they should do;

3. Where your Travel Problem has not been resolved at the time, make sure you make a written complaint to the person you are speaking to, using the laws referred to in this Charter. Ensure that they acknowledge receipt of your written complaint;

4. If you are taking a Package Holiday, then your principal Rights stem from EU Directive 2015/2302 - this law gave substantial rights to Package Holidaymakers and has been a factor in most peoples holidays for many decades. Prior to Brexit, the UK implemented the EU Directive into UK Law, carrying across those rights. A Guidance Note is also available to help you understand the issues, but because Package holidays introduce complex complaints, it is always wise to seek suitably qualified independent advices to help you with your complaints!

5. If you are travelling by Coach or Bus, UK Consumers have extensive rights in law. These rights provide for compensation for death, mobility, delays, care and assistance and a right to information. EU 181/2011 provides the basis of the Rights, and the UK’s Statutory Instrument, The Rights of Passengers in Bus and Coach Transport (Amendment etc.) (EU Exit) Regulations 2018, provides for amendment to those rights. You will need to read one document with the other, but they provide essentially the same rights as when the UK was a member of the European Union;

6. If you are travelling by sea, inland waterways or ferry, again, UK Consumers have extensive rights in law. Regulation EU 1177/2010 provides for compensation for mobility & assistance and compensation for lost or damaged equipment. They further provide for assistance and compensation for delay or cancellation, re-routing and refunds; it also provides for care and assistance should any of these events occur. You are also entitled to information on passenger rights. In implementing this Regulation, the UK has simply carried across the Regulation and created a number of ‘Guidance Notes’ which seeks to explain what those rights are. In short, the Regulation remains intact. It is my recommendation that you use the EU Regulation as the principal source of those rights and refer to the UK’s ‘Guidance Notes’;

7. If you are travelling by rail, UK Consumers have extensive rights in law. EU 1371/2007 provides for extensive rights on ticketing, assistance, delays, missed connections and cancellations. The Regulations also provide for care and assistance along with assistance from those of reduced mobility. Passengers are also entitled to receive information on these rights. The UK government upon Brexit, carried across the Regulation and created a ‘Guidance Note’ to the Regulation. It is important to note that the UK government has fully accepted that the Regulation applies to all UK domestic services! Always refer to the principal EU Regulation and make a note of what the UK guidance states;

8. If you are travelling by air, then again you have substantial Consumer Rights carried over by Brexit. The principal Regulation before Brexit was EU 261/2004. That Regulation provides for rights on delays, cancellations, compensation, re-routing, care & assistance. It also provides rights for those with reduced mobility and the right to information on these rights. These Regulations were transferred onto the UK Statute book upon Brexit-day and is accompanied by a ‘guidance note’ and a Statutory Instrument from the Regulator, the latter appears to suggest that a defence for an airline is to show that they practised “Due Diligence” (noting the Regulation talks about the defence of “Extraordinary Circumstances”), to demonstrate that they have not broken the law. The Statutory Instrument suggests also that Alternative Dispute Resolution has been given an added formality (see point 10 below). You need to ensure that you read all documents to understand the range of rights, but essentially, like the other Regulations, they currently retain all Consumer Rights;

9. For persons with Reduced Mobility travelling by Air, extra rights accrue from EU Regulation 1107/2006. These rights are extensive and following Brexit, they were transferred onto the UK Statute book. These are accompanied by a ‘guidance note’ from the Regulator, but essentially, rights currently remain the same;

10. Throughout the Regulations and the UK’s ‘Guidance Notes’ and Statutory Instruments, reference is made to “Extraordinary Circumstances” or “Circumstances” or in the case of Air Travel, the defence of “Due Diligence”. This latter defence only seeks to confuse the issue and reflects an argument found in one International Aviation Treaty which Consumers affected by those issues find it difficult to deal with. Care before any action must be taken before assuming that one-style of defence trumps the other. But, through crises or normal operations, Travel Companies have sought to reinterpret their obligation to run a service or give you your rights, and these ‘defences’ and refusals of rights have attracted the decisions of the European Court of Justice, providing clarification and justification for Consumer Rights. Where a Travel Company uses these exceptions, always ask them to justify their reasoning in writing. You can read a list of such challenges so that you can understand how to deal with any responses you my need to give;

11. Finally, in any travel dispute, not only do you need to understand the laws found in this Charter, but also take important actions on your road to resolution, so I would recommend that you:

1. Take the names and contact details of those around you who are affected - working as a group toward resolution is a stronger option;
2. Always check your own evidence, make sure it is comprehensive (keep receipts or reports you find or evidence from other holidaymakers), and find evidence to challenge the Travel Company in question;
3. Always write to the Travel Company and give them the chance to resolve any dispute you have with them;
4. Never allow yourself to be persuaded to take a route to Alternative Dispute Resolution until a) you have received all the responses you need from the Travel Company, b) that you are satisfied with all your evidence you have gathered, c) that you are satisfied that you have complied with the law, and d) that you are comfortable in setting out all the issues - if not, seek some independent assistance to do so;
5. If you are offered compensation, either check the laws to see if that is correct or seek independent advice - make sure that advice is suitably qualified!

As you can see, Brexit has not created less bureaucracy but rather more and the coming months and years will demonstrate whether these rights will remain intact - I suspect unless there’s a change in government, the lobby that is the Travel Industry will argue for a lessening of your rights to increase their competitiveness!

Hopefully, you will find my Charter useful and that you will secure your rights. If you struggle, always complain to the Regulator and complain that the company has broken the law and that you want them, the Regulator, to regulate, and cause the company to change their direction on handling your complaint! In my opinion, a good Regulator should not immediately point you to Alternative Dispute Resolution schemes, but ensure that the offending parties comply with the law, whether their resources are limited or not!

Until the next time

Take care

Note: This is the script from the Podcast of the same name, which can be found here.

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