The Iron Law at Volkswagen

So Michael Horn, VW’s US CEO has made a “sincere apology” for what went on at VW.

And like so many “sincere apologies” he blamed somebody else. “My understanding is that it was a couple of software engineers who put these in.”

As an old automotive hand I have always been very proud of the industry. I have held it up as a model of efficiency, aesthetic aspiration, ambition, enlightenment and probity. My wife will tell you how many times I have responded to tales of workplace chaos with “It couldn’t happen in a car plant”. Fortunately we don’t own a VW but I still feel betrayed by this. Here’s why.

A known risk

Everybody knew from the infancy of emissions testing, which came along at about the same time as the adoption of engine management systems, the risks of a “cheat device”. It was obvious to all that engineers might be tempted to manoeuvre a recalcitrant engine through a challenging emissions test by writing software so as to detect test conditions and thereon modify performance.

In the better sort of motor company, engineers were left in no doubt that this was forbidden and the issue was heavily policed with code reviews and process surveillance.

This was not something that nobody saw coming, not a blind spot of risk identification.

The Iron Law

I wrote before about the Iron Law of Oligarchy. Decision taking executives in an organisation try not to pass information upwards. That will only result in interference and enquiry. Supervisory boards are well aware of this phenomenon because, during their own rise to the board, they themselves were the senior managers who constituted the oligarchy and who kept all the information to themselves. As I guessed last time I wrote, decisions like this don’t get taken at board level. They are taken out of the line of sight of the board.


So here we have a known risk. A threat that would likely not be detected in the usual run of line management. And it was of such a magnitude as would inflict hideous ruin on Volkswagen’s value, accrued over decades of hard built customer reputation. Volkswagen, an eminent manufacturer with huge resources, material, human and intellectual. What was the governance function to do?

Borrowing strength again

It would have been simple, actually simple, to secret shop the occasional vehicle and run it through an on-road emissions test. Any surprising discrepancy between the results and the regulatory tests would then have been a signal that the company was at risk and triggered further investigation. An important check on any data integrity is to compare it with cognate data collected by an independent route, data that shares borrowing strength.

Volkswagen’s governance function simply didn’t do the simple thing. Never have so many ISO 31000 manuals been printed in vain. Theirs were the pot odds of a jaywalker.


In the English breach of trust case of Baden, Delvaux and Lecuit v Société Générale [1983] BCLC 325, Mr Justice Peter Gibson identified five levels of knowledge that might implicate somebody in wrongdoing.

  • Actual knowledge.
  • Wilfully shutting one’s eyes to the obvious (Nelsonian knowledge).
  • Wilfully and recklessly failing to make such enquiries as an honest and reasonable man would make.
  • Knowledge of circumstances that would indicate the facts to an honest and reasonable man.
  • Knowledge of circumstances that would put an honest and reasonable man on enquiry.

I wonder where VW would place themselves in that.

How do you sound when you feel sorry?

… is the somewhat barbed rejoinder to an ungracious apology. Let me explain how to be sorry. There are three “R”s.

  • Remorse: Different from the “regret” that you got caught. A genuine internal emotional reaction. The public are good at spotting when emotions are genuine but it is best evidenced by the following two “R”s.
  • Reparation: Trying to undo the damage. VW will not have much choice about this as far as the motorists are concerned but the shareholders may be a different matter. I don’t think Horn’s director’s insurance will go very far.
  • Reform: This is the barycentre of repentance. Can VW now change the way it operates to adopt genuine governance and systematic risk management?

Mr Horn tells us that he has little control over what happens in his company. That is probably true. I trust that he will remember that at his next remuneration review. If there is one.

When they said, “Repent!”, I wonder what they meant.

Leonard Cohen
The Future


First thoughts on VW’s emmissions debacle

It is far too soon to tell exactly what went on at VW, in the wider motor industry, within the respective regulators and within governments. However, the way that the news has come out, and the financial and operational impact that it is likely to have, are enough to encourage all enterprises to revisit their risk management, governance and customer reputation management policies. Corporate scandals are not a new phenomenon, from the collapse of the Medici Bank in 1494, Warren Hastings’ alleged despotism in the British East India Company, down to the FIFA corruption allegations that broke earlier this year. Organisational scandals are as old as organisations. The bigger the organisations get, the bigger the scandals are going to be.

Normal Scandals

In 1984, Scott Perrow published his pessimistic analysis of what he saw as the inevitability of Normal Accidents in complex technologies. I am sure that there is a market for a book entitled Normal Scandals: Living with High-Risk Organisational Structures. But I don’t share Perrow’s pessimism. Life is getting safer. Let’s adopt the spirit of continual improvement to make investment safer too. That’s investment for those of us trying to accumulate a modest portfolio for retirement. Those who aspire to join the super rich will still have to take their chances.

I fully understand that organisations sometimes have to take existential risks to stay in business. The development of Rolls-Royce’s RB211 aero-engine well illustrates what happens when a manufacturer finds itself with proven technologies that are inadequately aligned with the Voice of the Customer. The market will not wait while the business catches up. There is time to develop a response but only if that solution works first time. In the case of Rolls-Royce it didn’t and insolvency followed. However, there was no alternative but to try.

What happened at VW? I just wonder whether the Iron Law of Oligarchy was at work. To imagine that a supervisory board sits around discussing the details of engine management software is naïve. In fact it was the RB211 crisis that condemned such signal failures of management to delegate. Do VW’s woes flow from a decision taken by a middle manager, or a blind eye turned, that escaped an inadequate system of governance? Perhaps a short term patch in anticipation of an ultimate solution?

Cardinal Newman’s contribution to governance theory

John Henry Newman learned about risk management the hard way. Newman was an English Anglican divine who converted to the Catholic Church in 1845. In 1850 Newman became involved in the controversy surrounding Giacinto Achilli, a priest expelled from the Catholic Church for rape and sexual assault but who was making a name from himself in England as a champion of the protestant evangelical cause. Conflict between Catholic and protestant was a significant feature of the nineteenth century English political landscape. Newman was minded to ensure that Achilli’s background was widely known. He took legal advice from counsel James Hope-Scott about the risks of a libel action from Achilli. Hope-Scott was reassuring and Newman published. The publication resulted in Newman’s prosecution and conviction for criminal libel.

Speculation about what legal advice VW have received as to their emissions strategy would be inappropriate. However, I trust that, if they imagined they were externalising any risk thereby, they checked the value of their legal advisors’ professional indemnity insurance.

Newman certainly seems to have learned his lesson and subsequently had much to teach the modern world about risk management and governance. After the Achilli trial Newman started work on his philosophical apologia, The Grammar of Assent. One argument in that book has had such an impact on modern thinking about evidence and probability that it was quoted in full by Bruno de Finetti in Volume 1 of his 1974 Theory of Probability.

Supposes a thesis (e.g. the guilt of an accused man) is supported by a great deal of circumstantial evidence of different forms, but in agreement with each other; then even if each piece of evidence is in itself insufficient to produce any strong belief, the thesis is decisively strengthened by their joint effect.

De Finetti set out the detailed mathematics and called this the Cardinal Newman principle. It is fundamental to the modern concept of borrowing strength.

The standard means of defeating governance are all well known to oligarchs, regulator capture, “stake-driving” – taking actions outside the oversight of governance that will not be undone without engaging the regulator in controversy, “whipsawing” – promising A that approval will be forthcoming from B while telling B that A has relied upon her anticipated, and surely “uncontroversial”, approval. There are plenty of others. Robert Caro’s biography The Power Broker: Robert Moses and the Fall of New York sets out the locus classicus.

Governance functions need to exploit the borrowing strength of diverse data sources to identify misreporting and misconduct. And continually improve how they do that. The answer is trenchant and candid criticism of historical data. That’s the only data you have. A rigorous system of goal deployment and mature use of process behaviour charts delivers a potent stimulus to reluctant data sharers.

Things and actions are what they are and the consequences of them will be what they will be: why then should we desire to be deceived?

Bishop Joseph Butler


The elephant in the room – proving a negative in litigation

File:African Bush Elephant.jpgThe apocryphal story goes around that Ludwig Wittgenstein challenged fellow philosopher Bertrand Russell to prove that there wasn’t an elephant in the room in which they were sharing afternoon tea.

It’s a fairly self-indulgent challenge between intellectuals but it does highlight a feeling we’ve all had. It’s easy to prove that there’s an elephant there, if there is, by pointing to it. Proving that something isn’t there is more problematic. You have to point to everywhere that it isn’t.

Former Shell Legal Director Peter Rees QC recently observed that litigation and compliance are the most significant risks currently facing corporations. In litigation, defendants sometimes find themselves in the position of having to prove that something didn’t happen against an allegation from a claimant that it did. That always puts the defendant at a disadvantage. The claimant will give evidence of what they say happened. What evidence can the defendant give?

This asymmetry will be all the more keenly felt in England and Wales following the recent Jackson reforms to personal injury litigation. The former control mechanisms have been swept away and the Ministry of Justice believes that this is likely to result in more claims against businesses. Claims that would have previously been screened out will now be run because of the economics of the restructured claims environment. All my instructing solicitors are now confirming this to me.

Ironically, the instrument of this upwards pressure on claims risk is Qualified One-way Cost Shifting (QOCS). QOCS also pretty much prevents a business who successfully defends a claim from recovering legal costs against the unsuccessful claimant. In any event, legal costs are likely to be dwarfed by irrecoverable costs to the business from having key people distracted from the value-creating process.

All that means that businesses need to get better at stifling spurious claims at the outset. The twin keys to that are process discipline and record keeping.

It always saddens me when I have to advise businesses to settle doubtful claims simply because their record keeping was not capable of setting them up to rebut an allegation.

There are three principal elements to staying ahead of the game:

  • Ensuring that risk assessment identifies where record keeping would support the organisation’s narrative of prudent operation and regulatory compliance;
  • Implementing a system of process surveillance to foster process discipline; and
  • Building a document retention system that ensures that such a record can be interrogated to provide a compelling picture of conscientious management and risk mitigation.

A well designed document retention system is a key part of managing risks.

I find it instructive and encouraging that in Divya & Ors v Toyo Tire and Rubber Co. Ltd & Ors, Toyo Tire managed to persuade the court that it was very unlikely that a road traffic accident could have been caused by a manufacturing fault in their tyre.

I do not advocate rigorous process management as a net cost motivated by defensive operations aimed at providing a patina of compliance. That is not what succeeded at Toyo Tire. Rigorous process management reduces waste, improves socially recognised customer reputation and streamlines cashflow. Its potency in litigation is a bonus.

Deconstructing Deming II – Adopt the new philosophy

2. Adopt the new philosophy. We are in a new economic age. Western management must awaken to the challenge, must learn their responsibilities, and take on leadership for change.

W Edwards Deming Point 2 of Deming’s 14 Points. This is how Deming described the new philosophy in Out of the Crisis (1983).

We can no longer tolerate commonly accepted levels of mistakes, defects, material not suited for the job, people on the job that do not know what the job is and are afraid to ask, handling damage, antiquated methods of training on the job, inadequate and ineffective supervision, management not rooted in the company, job hopping in management, buses and trains late or even cancelled because a driver failed to show up. Filth and vandalism raise the cost of living and, as any psychologist can aver, lead to slovenly work and to dissatisfaction with life and with the workplace.

It’s sometimes easy to forget how materially shabby life was in the 1970s and early 1980s. Deming certainly summed up the way many people felt. Yet the 1980s and beyond brought a stream of high quality, low cost consumer goods. Just think of motor cars and cameras. It is easy to feel that the “new philosophy” is now entrenched. But there remain vast areas of unsatisfactory customer service. I recently had some exchanges with David Gaster about problems he was having with an HP computer. Anyone in the UK who has tried to get BT Sport working knows the meaning of frustration.

Kano modelAround a decade ago, W. Chan Kim promoted what he described as the Blue Ocean strategy. This turned out to be largely a repackaging of Noriaki Kano’s Attractive Quality Creation (AQC). Broadly, a business aspires to free itself of competitive pressures by developing novel products, value streams and market sectors. This represents an ambition to locate a business on the “exciter” curve of the Kano model. One of the lessons of the Kano model is that customers on the “exciter” curve are not so bothered about reliability. It’s just great to have the stuff. It is easy to see how, in 21st century tech industries surfing the blue ocean, service is not a priority. Product development reigns. Time to market may be critical.

File:Lemon.jpgThe Kano model equally makes it clear that the customer of a product or service on the “expected” curve is intolerant of quality lapses. Performance is taken for granted and defects represent sensible pain. They are remembered and shared among sympathetic peers. This is what Kim referred to as the red ocean where sellers compete in mature markets for share by driving down costs. Kim saw this as a world of inevitable diminishing returns where corporations face the perpetual threat of extinction through failing price competitiveness. Aspirations to improving quality are inhibited by managers’ fear that they operate in a market for lemons, where such improvements are not rewarded in price or volume advantage.

Steven Denning has criticised views like Kim’s, emphasising that customer value and quality are important even in the red ocean. Denning criticises corporations, as did Deming, for preferring to cut costs rather than invest in innovation. Where there is surplus workforce, layoff is almost always preferred over redeployment in novel value creating activities. Of course, that is what we would expect from Daniel Ellsberg’s theory of ambiguity aversion.

Ultimately, innovation may not be the red ocean corporation’s comparative advantage. It may well be best for everybody that skilled people are released from the red ocean corporation so that they can resource the blue ocean corporation. It requires superb management of intangible assets for a corporation even to attempt to redeploy its own resource from growing systematic productivity to new product launch. The red ocean is not a hopeless place to be. There is always opportunity for product differentiation. When I worked in the automotive constant velocity joint business in the early 1990s we were all compelled to recite every morning “There is no such thing as a commodity product”.

Yet the reality is that there are not only two colours of ocean. Once a product is launched into the blue ocean, as Kano predicted, it starts the steady drift down the spectrum towards the red. Quality and cost become increasingly important. To a great extent, competitiveness in the, say, green ocean will depend critically on decisions made in the ultra-violet of product development.

In the present day, many gains in quality have been made. The low hanging fruit have gone. Competitive advantage is still to be had in improving quality as a strategy for reducing costs while capturing customer prestige. There is no such thing as a commodity product. Even the infra-red ocean of commodities presents opportunities to the astute. Deming’s message that understanding of variation is central to embedding quality in design and redesign, and in incremental improvement of production, remains a potent means to capture market. An opportunity that remains to be exploited by most businesses.

The doubt then arises as to why the market has not forced indefinite quality improvement on mature products to the extent that Deming advocated and envisioned. Deming certainly believed that the market itself was not enough. He believed that change would come from some movement of national renewal in the US that would then spread globally. Unfortunately no such movement has reached a critical mass and I fear that it is unlikely in the future. We must look to conventional market economics.

One economic analysis would be that the fear of a market for lemons acts as a disincentive to seek quality. However, liberal economists such as William L Anderson have emphasised the extent to which lemon markets provide opportunities for entrepreneurs. Fear of a lemon market betrays a lack of confidence in branding, marketing and reputation management. There are always business opportunities for people who pick an established market and find an excellent way to supply it. Put your sticker on the lemon and work at building reputation. The automotive industry in the 1980s and 1990s is an example of how the market forces of global over-capacity drove quality improvement and cost reduction. Deming’s insights into understanding variation provide the means. All stragglers kick themselves that they failed to take up opportunities that were there for the taking but ultimately grabbed by others.

Future blogs

There are three further things that Deming referred to under this heading that I want to blog about at a later time:

  • Leadership;
  • Government regulation and competition law;
  • Cost of Poor Quality (CoPQ) v. Taguchi loss function.

How to use data to promote your business

… or alternatively, five ways not to. Quite by chance, I recently came upon a paper by Neil H. Spencer and Lindsey Kevan de Lopez at the Statistical Services and Consultancy Unit of the University of Hertfordshire Business School entitled “Item-by-item sampling for promotional purposes”.

The abstract declares the aim of the paper.

In this paper we present a method for sampling items that are checked on a pass/fail basis, with a view to a claim being made about the success/failure rate for the purposes of promoting a company’s product/service.

The sort of statements the authors want to validate occur where all items outside some specification are classed as defective. I would hope that most organisations would want to protect the customer from defects like these but the authors of the paper seem to want to predicate their promotion on the defects’ escape. The statements are of the type:

There is a 95% probability that the true proportion of trains delayed by more than 5 minutes is less than 5%.

— or:

There is a 95% probability that the true proportion of widgets with diameter more than 1% from nominal is less than 5%.

I can see five reasons why you really shouldn’t try to promote your business with statements like this.

1. Telling your customers that your products are defective

Or to put it another way “Some of our products are defective. You might get one.” This might be a true statement at your current level of quality maturity but it is not something to shout at customers. All these statements do is to germinate doubt about your product in the customer’s mind. Customers want products and services that simply perform. Making customers think that they might not will be a turn off.

Customers will not think it okay to end up with a defective item or outcome. They will not put it down just to the “luck of the draw”. The products will come back but the customers won’t.

If you are lucky then your customer won’t even understand this type of promotional statement. There are just too many percentages. But they might remember the word “defect”.

2. Tolerating defects

Or to put it another way “Some of our products are defective and we don’t care.” Quoting the 5% defective with pride suggests that the producer thinks it okay to make and sell defects. In the 1980s Japanese motor manufacturers such as Toyota seized market share by producing reliable vehicles and using that as a basis for marketing and creating a reputation for quality.

Any competitive market is destined to go that way eventually. Paradoxically, what Toyota and others discovered is that the things you have to do to make things more reliable are the same things that reduce costs. Low price and high quality goods and services have an inbuilt advantage in penetrating markets.

3. Saying nothing about the product the customer is considering buying

The telling phrase is “true proportion of” trains/ widgets. As a matter of strict statistical technicality, Spencer and de Lopez don’t describe any “method for sampling” at all. They only describe a method of calculating sample size, worked out using Bayes’ theorem. Because they use the word “true”, it can only be that they were presuming what W Edwards Deming called an enumerative study, a characterisation of a particular sampling frame that yields information only about that frame. They took a particular slice of output and sampled that. Such a study is incapable of saying anything about future widgets or trains.

Put another way, “When we looked at a slice of our products we’re pretty sure that no more than 5% were defective. We don’t care. As to future products, we don’t know. Yours may be defective.”

I think we need a name for soi-disant Bayesians who chronically fail to address issues of exchangeability (stability and predictability).

4. Throwing away most of the valuable information on your product

Looking at the train example, “5% more than 5 minutes late” may mean:

  • “5% were 6 minutes late, the rest were 4 minutes late”; or
  • “4% were one hour late, 1% were cancelled and the rest were on time”; or

These various scenarios will have wholly different psychological and practical impacts on customers. Customers care which will happen to them.

Further, where we actually measure delay in minutes or diameter in millimetres, that is data that can be used to improve the business process and, with diligence, achieve the sort of excellence where quality failures and defects simply do not happen. That then provides the sort of consumer experience of satisfaction that can be developed into a public reputation for quality, performance and cost. That in turn supports promotional statements that will chime with customer aspirations and build business. Simply checking on a pass/ fail basis is an inadequate foundation for such improvement.

5. Managing by specifications

Taguchi1This is the subtlest point to turn your attention towards once everything is within specification. In the train example, the customer wants the train to be on time. Every deviation either side of that results in customer dissatisfaction. It also results in practical operating and timetable problems and costs for the railway. In the 1960s, Japanese statistician Genechi Taguchi put forward the idea that such losses should be recognised and form the basis of measuring improvement. The Taguchi loss function captures the idea that losses start with every departure from nominal and then start to escalate.

That leads to the practical insight that the improvement objective of any business process is “on target, minimum variation”.

What the Spencer-de Lopez statements ultimately say is that the vendor is willing to tolerate any train being 5 minutes late and 5% of trains being delayed even longer than that, perhaps indefinitely. Whether even that depressing standard is achieved in the future, who knows? Perhaps the customer will be lucky.

I fear that such statements will not promote your business. What will promote your business is using measurement to establish, maintain and improve process capability. That will provide the sort of excellent customer experience that can be mapped, promoted and fed back into confident, data based marketing campaigns aimed at enhancing reputation. Reputation supports talent recruitment and fosters a virtuous circle of excellence. This is what reputation management is about.

I do note that Spencer and de Lopez protest that this is only a working paper but it has been on their website since mid-2012 so I presume they are now owning the contents.

Just as a final caveat I think I should point out that the capability indices Cp and Cpk, though useful, do not measure Taguchi loss. That is the topic for another blog.