In Conversation With John Fingleton, Andrea Coscelli, and Marcus Bokkerink

Welcome to Clarity Gottlieb's Antitrust Review, a podcast focused on antitrust enforcement policy and practice. In an increasingly complex and noisy world, we strive to provide insight, clarity, wisdom and light. My name is Nick Levy and I'll be your host today. This episode comes from London, where I'm joined in person by three of the most consequential figures of the UK competition world over the past 20 years. John Fingleton, who led the Office of Fair Trading between 2005 and 2012, Andrea Cicelli, Chief Executive of its successor, the Competition and Markets Authority, the CMA between 2016 and 2022, and Marcus Bockering, who chaired the CMA between 2022 and the beginning of this year, 2025. It's been an extraordinary year of evolution in UK antitrust enforcement, as the government steered the CMA to scale back its post-Brexit ambitions to be the world's leading enforcer and to focus the agency instead on UK competition and UK growth. Let me turn to the panel. You've each led the UK competition agency. What's it like? How easy is it to set priorities and to do what you set out to do? What do you view as your greatest achievement and your biggest regret? Let's start with John, then Andrea and Marcus. Thank you, Nick. It's great to be joining friends on this podcast. When I started at the Office of Fair Trading, it was five years into a new law on the Competition Act '98 and two years into a new mergers law. One of the big problems it had was that decisions that the OFT under my predecessor John Vickers had taken not to proceed, whether not to refer a merger or whether not to go ahead with the competition case had turned out to be the more interesting cases litigated before the CAT and the CAT basically was upholding third parties who were trying to force those decisions to go ahead with the result that it was less easy to clear a phase one merger case than people had expected it might be. You had to go to a lot more work and it was almost impossible to close down a competition investigation once you had opened it. As a result, there were some 30 or 40 open Competition Act cases that we couldn't shut down because we had to go to the same burden of evidence to shut the case down as we did to show an infringement. So I had a lot of resource tied up in things that were not particularly, I thought, a productive use of money. One of the things we did, which I think has stood the test of time, is we developed a set of prioritisation principles to decide how to prioritise resource. We used that to rank all of the open Competition Act investigations in front of us and we picked 17 of them that were below the level and we just closed them as an administrative decision and that was because we knew that the CAT couldn't challenge that because it was our allocation of resources and not on the merits of the cases. But those prioritisation principles are still used by the CMA today, they've been modified slightly over time, but they're essentially a guiding principle for what the agency should do. So I came in and found the agency very unconstrained and we did a lot to try and free up that resource constraint. In terms of achievements, the things that I would say that I was proud of, I think the breakup of the airports was probably showed that the marketing investigation tool really could work to do something structural and bold in the UK economy and I think that is still the signature achievement of the marketing investigation regime and it showed the system at its best. I think some of the competition enforcement cases we brought where we had very high fines in consumer facing markets were very good at achieving compliance and we did I think very impressive work on measuring compliance with competition on not just focusing on cases and fines but actually what were the outcomes for consumers in the economy and then in terms of my biggest regret, I think there's probably two things there, one was the tobacco case and the other was the failed criminal case against British Airways which I was recused from but it had been a mistake to recuse myself out of excess caution but it basically went pear-shaped and I think Andrea was still dealing with the tobacco case legacy and Marcus might even have some residue with ten years later but the tobacco case was one where people in the private bar always come to you as they head of the agency, you've got a problem with this case, you've got a problem with this case and the person in that case came to me several times and said you really have a problem with this case and actually that was the one I should have listened to out of all the people complaining because it was a problem. Andrea, over to you, what's it like to lead the agency, what were your achievements, what are your regrets? So in my case it was basically it was the merger or the OFD and the competition commission, I was an executive board member at the time, I think in many ways as always when things work well people stop talking about them but I think that leadership team delivered successfully the merger which is always quite complicated in the public sector. In my case Brexit obviously was a big deal, it happened, the referendum pretty much happened when I started the job so that was really a key element of the first two, three years of my tenure. I mean in terms of priorities, it is probably one of the key aspects of the role for the CEO, the chair, you really need to spend a lot of time with the rest of the board, with wider stakeholders, with government in general and I think at the end of the day that really makes a big difference to ten years. I mean obviously there's quite a lot of stuff that comes in and you have no choice and you're reactive but you do have, you know you're able to play a very proactive role. What I miss, I miss the mission, you know I'm back now in practice working on a portfolio of cases like I did the first part of my career, it is just a very different job description, you know I don't have time now to rethink about this policy debate and I did spend a lot of time doing it when I was running the CMA, international discussions, I was in New York in the last few days, I was spending time with Jonathan Cantor, reminding myself of you know how important and useful was this kind of international coordination with the other agencies. I mean in terms of what I would do differently, I think the competition enforcement program didn't really change during my tenure, it wasn't particularly successful when I started and it wasn't particularly successful when I finished so that is really an area where I mean it is hard and you know it has been hard for most people but probably I should have been a bit more creative there, on pace, I mean those who know me I know I was pretty obsessed about pace when I was in the CMA but again maybe we should have done more on that as well but at the same time it was a very active phase, I mean Brexit was a big deal for the CMA, obviously Covid, I was ahead for the two years of Covid where I think we did really well in progressing the work program and generally the firepower of the CMA increased very significantly during my tenure, you know we got increases in budgets, we hired lots of people on the day-to-day technology side, lots of economists, so in terms of achievements I think for me it's really the kind of the delta in terms of what the agency was like between when I started and when I ended, you know it was a much bigger agency, had proper presence in Scotland which I thought was an issue before, has a pretty strong merger control program at the time. Well during Covid and then there was a lot of work on the legislation on what became the DMCC Act, both on the digital side and consumer protection and that happened during multiple secretaries of state which had very different views about competition policy productivity etc so I think that was an achievement of trying to convince different people that it was the right thing to do, I mean it's a bit of an irony for me now that the current government seems to be in a different place but that was quite successful and finally in terms of the biggest regret I think that we had some really powerful cases, particularly some of the competition enforcement cases in pharma which were really impactful and you know by and large the CMA has succeeded in taking them through the courts but there have been some defeats and certainly delays and so you know by the time all this will be done and settled it could be many years between the beginning of this case and the end and obviously you lose impact when that happens. Thanks Andrea so Marcus to bring us up to date, what's it like to leave the agency? What's it like, so a thank you Nick for inviting on by the way, it's great to be with the two of you as well, three things struck me in particular I think when I started, one is that the people who work at the CMA have a very high integrity and that does make for a strong foundation of getting the core job of the CMA done well I think, secondly I noticed a very high natural affinity for consumers but perhaps less experience from and so affinity with businesses but that's something that could be addressed and third very open I felt at least to learn from the outside and so I certainly felt did not feel a lot of resistance when recommending a bunch of changes or priorities so and on the second part of your question the priorities I guess I put those into two buckets there's some external priorities which I felt were needed given the changing environment and some internal ones which is about how we go about doing the work, I mean in terms of external priorities I said let's start as we're doing business with who's the customer and what are we trying to achieve for them and that's where this strategy of looking at we're here to serve consumers but we're also here to serve businesses came from, when you look at that way you say well what is it that they need, what is it that they want, how do you know that competition protection and consumer protection works for them, well that's how we set out the set of clear outcomes we're trying to achieve and that drove some very specific priorities of work so for consumers the aim was to make sure that more consumers get great choices and a fair deal in more markets that matter to them and to the economy and that's why the work was focused on having somewhere to live, buying food, being able to buy things online without being misled, getting around etc and for businesses the aim was to make sure that more businesses could innovate and compete in more markets without being held back by anti-competitive practices or monopolies and that's why the work tended to focus on those markets that were going to be key for the economy and where competition and innovation was potentially at risk of being choked off and hence the work on digital markets and with digital platforms and for the economy, given that doing that job well would drive growth, we said we should also dial up our active recommendations to government on where can you replace government regulation with the work of the free market customers choosing and competitors competing and not being held back so and on the internal priorities I guess we, I felt there was a good time to launch three initiatives. The first is dial up direct engagement with businesses and investors so all the discussions you see now going on with business association, private equity firms, investment associations etc that start at then. Secondly it was time I think to find a way to speed up some of the decision making and/or making it more pragmatic and so we said let's start with the biggest issues where reform is needed internally which was mergers hence the phase two reforms, digital where we said look let's not turn this into another set of market investigations that take 18 months so you have the nine month deadline for strategic market status investigations, consumer enforcement, let's do it in a practical sequence where you educate businesses first what the law is then consumers what they can expect and only then start to enforce people who are still not not listening and of course it's a bit ironic to hear some credit being taken for all of that all of a sudden happening as a result of a January intervention by government but that's what politicians do, I mean I guess in terms of achievements I, three quick things, one the fact that we were during that time able to really focus on tangible outcomes for consumers, for businesses that we could measure and so you see the these results that every pound spend will see and they deliver 20 pounds or more of direct financial benefits for consumers alone never mind business. Getting the digital market consumers and competition bill from international act continuing the work that Andrea did in the face of some pretty fierce lobbying against it I think that's an achievement to get it done and thirdly I am quite proud of the fact that this mindset change of let's find practical ways to focus on solutions not problems get some work done faster can we be more pragmatic in terms of how we interact with people I think that's still continuing and so that's a good thing. Thanks Marcus, a quick follow up question for each of you and then we'll turn to the future, John you mentioned the merger of the office of fair trading and the competition commission which now seems a long time ago but with the benefit of hindsight do you think the government got it right when it combined the two agencies? I mean the big advantage of that system was the double independence that the OFT was independent of the government and the competition mission was independent of the OFT and if I wanted to make any views about a matter before the competition commission known the only way they would receive those was in writing as from any other third party I could not have a conversation with the inquiry chair in a corridor but they were in the building and they would not speak to me about it so it was really a very very straight form of double independence the downside of that was I think a lot of inconsistency within the system number one we saw a lot of cases cleared at phase two that we were as puzzled by as other people and there was much more type one error than type two error in the sense of false negatives and the second issue was quite a lot of argumentation between the two agencies about the workflow they felt that on mergers that we were going to phase one point eight rather than clearing things rather than sending things over at phase one and they also felt with market investigation efforts that we should be sending at least one case a year so as to keep their resources smooth and there was no way of smoothing the resources between the two so I think the merger has basically inverted those so in some sense it's made the resourcing and consistency a lot better but it probably dulled the independence and I'd be interested in Andrea's view on this but but you know we discussed this when Andrea was there and I can see how in steady state times and Andrea was there independent who wasn't compromised but it's maybe more difficult to observe that independence with externally with clarity at the moment well let me turn to Andrea I'm not sure people associated your tenure with steady state you'll recall it came in the heady days following the brexit vote when you were preparing for life outside of the EU at the time you said that brexit was an opportunity for the CMA to take back control take its place at the top table of global enforcers looking back how did you do and again with the benefit of hindsight do you think the CMA got the balance right thanks Nick I think it felt it was a very different phase from where we are now I mean I think 2025 when all of us think about sovereignty and there was a limited sovereignty in so many areas for for the UK but you know for the European Union and others I think it's a very different phase from where we were in 2016 2016 you know we're coming out to the EU the government was very supportive of having an independent agency who would take the right decisions for UK consumers and that was you know the view across the piece and the first three years of brexit when it was the Theresa May government with Greg Clarke the Secretary of State the steer to us was very clearly a to enforce competition policy because that was good for consumers and productivity and growth and be to strengthen the agency so that we could play our role globally and so that's kind of what we did and personally I thought that was the right decision now we're in a very different place now and if you look at the current steer I think the way the CMA is interpreting it is pretty much to get out of the way on anything that is global I I mean that's kind of the other extreme so it went from one extreme to the other I just don't think this is sustainable because you know right now there are global deals in key industries like you know cybersecurity pharma life sciences etc and the government is essentially saying to the CMA you get out of the way and the decision is outsourced to the DOJFTC and the European Commission now DOJFTC have a declared kind of America first policy and they're clearly taking industrial policy into consideration in some of these big deals so they're clearly not thinking about UK consumers and the EU is also under very similar pressure to incorporate more industrial strategies I honestly don't think there is any consistency between saying you know we are priority sectors industrial strategy and the CMA has to play this more limited national role and the same applies now to a lot of the digital cases so we'll see I mean did we overreach I mean obviously history has shown that there was an overreach because what happened with Marcus what happened on Microsoft Activision and and I think the way I think about it is you know the current government is taking essentially a hollow government approach to inward investment so it's a probably taking a bit like the kind of approach the Irish government has taken for many years and so they don't want businesses particularly big business foreign businesses big investors to go to number 10 number 11 complain about any parts of government including the CMA or the FCA or of com etc. Now is a bit of an issue because your description as an enforcer is to enforce the law and clearly the idea that you should never make any large important business unhappy is is quite hard when you're trying to be an enforcer so I think this is the current position that's where the CMA is do I think that's stable set up I don't think so so we will see how this evolves in the coming months and years but it certainly the pendulum has changed the CMA is under pressure to behave differently I think there is clearly a fairly fundamental inconsistency between what they're being asked to do and what essentially the law requires them to do so we'll see how it plays out Marcus let me turn to you your tenure as chair of the CMA straddle two periods the first up until around 2024 when the CMA was at the height of its powers widely viewed as in the words of the Financial Times the most aggressive anti-trust enforcer worldwide and the second when the incoming Labour government seemed frustrated with the agency frustrated that it wasn't sufficiently focused on pursuing a growth agenda my question for you is what was it like during this period and did you see the change in mood coming well first did we did we see the mood I think the focus on growth of the incoming Labour government was very clear from before the election so the board and I and all of us absolutely saw there was a focus on growth and I and the board and the whole CMA we were delighted by that because from the moment I start this chair you know economic growth is pretty much central in our objectives and so we were really reaching out with enthusiasm to the new government about how we could how aligned we were with their growth focus how we could specifically help them accelerate that growth and how the work we can do you know which was focusing on consumers in the areas where they have cost of living pressures you know putting more money in consumers pockets is a good thing for growth you know opening up key markets to more innovation and more competition is what will help drive productivity and innovation and growth as as every everybody who studied economic history knows and and and cutting back government regulation to let more parts of the UK economy have markets do that do the work is is tentatively positive for great so very enthusiastic and sassy and then there was a period of conversations where that enthusiasm turned to surprise and followed in some cases by incredulity and I guess there were three the three biggest surprises at the time some of them may not feel surprising now but the first was that behind the repeated statements about growth there was no economic plan there was no real substance and and it seemed almost no real understanding of how markets work which is that the reason that you get economic growth is that you get productivity growth and the reason you get that is because businesses innovate and the reasons they do that is because they have an incentive to innovate because customers can make choices to use their products and services or other people's personal services and because they are freed up to compete if they have a good idea and not held back by monopolies and so that was surprise number one that that that didn't seem to be an incoming view a secondly the second surprise I think was how to what extent there was seem to be a lack of confidence almost in not just in markets but in in British innovation British entrepreneurship the ability for a British ecosystem with the right reforms in capital development etc to to compete and to to be able to to to be part of the economic growth story investment story and then the third surprise although I guess that's a consequence of the first and the second is how easily almost willingly in some departments they seem to be in a way captured by some very specific interests of a very small number of firms and make the country increasingly economically dependent on those same very small firms which is just a big surprise so a real mood shift I would say during a during us during a small matter of months John let me turn back to you as Marcus has alluded the government's 2025 strategic steer urged the CMA to prioritize pro-growth pro-investment interventions to enhance the UK's attractiveness for overseas investment how realistic is it to expect the CMA to promote growth given its principal duty is to enforce competition rules what do you think the government wants the CMA to do differently and do you think a growth first agenda inevitably pushes the CMA towards competitive leniency and merger control so I think the government's policy in this regard is is utterly wrong if you allow an anti-private merger say that increases prices by 10% that's a tax on consumers it's initially a transfer but then we know that it gets wasted in ex inefficiency rent seeking etc etc so it's a loss to the economy and attacks on consumers and then the question is what price should you pay for that and if somebody comes along and says to the CMA well we're prepared to invest 20 billion in the economy in exchange for this monopoly rent over here should the CMA be the people making that decision no how what price should they put on it it's completely wrong to ask an independent agency to make that sort of trade-off and the reason we have independent competition policy is so that trade-off is not made there it's made at a higher level in government if government wants to abandon the competition rules in exchange for giving somebody monopoly rent and we we saw the Lloyds H. Voss merger it went through Parliament and Parliament decided that an anti-competitive merger would proceed that you might disagree with the decision but it was legitimate and appropriate I do not think you should be putting regulators in the position of making those trade-offs and I think the CMA is now in a very difficult place where it's unclear who is responsible for making those high-level political decisions I also think by the way that the right answer is rarely to allow and a competitive mergers we've seen the debate in the United States about the independence of the Federal Reserve politicians always want to make short-term decisions in the case of Trump on interest rates in the states to build short-term political favor but it's the wrong long-term thing for the economy and the reason we have political independence is to stop governments from harming themselves and harming the population it's a political decision but it's wrong one Andrea let me turn to you so you've heard from Marcus you've heard from John about what the government's pro-growth agenda may or may not mean how realistic do you think it is for the CMA to promote growth and do you think a growth first agenda inevitably pushes the agency towards competitive leniency okay thanks Nick so I would agree with John I mean I think you know I'm an economist I spend my entire life looking at these type of issues and I think the you know competition and with Marcus as well I mean competition is what drives innovation what drives productivity many previous governments in the UK have agreed with that both conservative governments label government so this is definitely a change in approach and I think it's making it quite hard for the CMA and for the leadership to CMA because you have essentially a chancellor who is going out with statements like you know regulation acts as a boot on the neck of businesses you know she goes in front of private equity executives saying you know people were complaining about the CMA and now they don't complain anymore so this clearly undermines the agency undermines the independence of the agency there is an issue about the panel which is double independence which really seems increasingly inconsistent with this kind of very clear steer to the CMA the CMA is flexing is doing a number of smart things in terms of helping the government with their agenda but I think fundamentally if you look at merger control if you look at competition enforcement it's hard to do it in the current context in terms of merger control obviously all of the advisors are posting on LinkedIn that this is a great time to do mergers so clearly there is a message out there that the CMA will be working really hard to try to find ways through for mergers which at the margin must mean that some anti-competitive mergers are approved by the CMA and as John said I struggle to see how that really helps with growth and productivity in the UK economy thanks Andrea just a last word from Marcus you said when you were at the CMA that you were already then focused on how the CMA might support growth since you left as I mentioned earlier on the government has given the CMA a very explicit steer to do just that what do you think that means in practice yeah no I think the steer is very clear in particular when you compare and contrast it to the previous steer because that's how you can learn what people are actually getting at and the previous steer that I've been working on when I was chair I mean the one one difference is there's a greater focus on how the CMA does it work but how does CMA does its work but as I said that's that's a positive thing that that was already on the way just different branding but that's good as long as it gets implemented bit of a red herring bow in terms of what the steer is about on the substance there's quite a lot that I think the government seems to want to do the CMA to do differently the first is you know in terms of the previous guidance help help consumers on the cost of living in the in their biggest areas of spend that's out so they need to do that make more markets competitive and open to innovation as because we understand that drives productivity and growth that's out and it's sort of and focus on making digital markets competitive that's also out and it's been replaced by this one thing which effectively says lay off anything that involves very large global firms especially tech firms because if there are competition issues in the UK or consumer protection issues in the UK investment is more important and it'll get sorted out by other jurisdictions so and needless to say the previous steered sort of lead the international approach is definitely out and the make sure you're a strong independent voice to government is also out so I think it's very clear what's wanted to the other part of your question you asked which is well does that lead to competitive leniency that steer absolutely does lead to competitive leniency but it doesn't lead to growth so that's the that's the disconnect you know it is probably as anti growth as you can imagine because you don't need to even be an economist to know and to have seen over time that whenever there is a replacement of dynamic competition with geopolities and monopolies whenever there is increasing dependency economically and politically on a very few number of players you get not more innovation in market innovation in markets you get less you don't get more investment you get less in every group you don't get more productivity you get less so I'm with the other comments that that's not very sustainable for any economy over the medium term John Andrea just a quick reaction before we move on to Marx's comment that one might expect a easing off with respect to CMA enforcement of big tech is is that a reasonable expectation where we are now well I mean I think the cloud investigation has been put on sort of sensibly delayed or put back and you know every year that you put some potential competitive harm back is is a is a is a harm to the economy so I think that there are reasonable issues there I would just say as well the I'm doing some work on nuclear regulation for the government competition regulation is not the barrier to growth in this economy start looking at planning an environmental regulation and then this government recently introduced new regulations on on events where its own regulatory policy committee said the benefit was one less than 1% of the cost so in other words the cost was more than a hundred times the benefit so they're they're introducing regulation that's hugely costly to the economy and not able to stop themselves doing that and then they're attacking an area where it is actually regulation is probably the most pro-growth regulation I can think of so look at water look at energy look at planning look at environment but of course there's not the ones that global motivations are complaining about. Andrea you fought hard for digital regulation are you worried it's not going to be enforced in the way you would like it to be enforced yeah I mean I think it's pretty clear I am involved with two major third parties on the two existing SMS investigations and I think it's fair to say that they are pretty deflated you know it's pretty clear that because of the steer the CMA is taking a very minimalist approach to remedies and investigations and this position that essentially anything that overlaps with cases or regulations in the EC or in the US somehow becomes off limits means the vast majority of issues because these are common issues and obviously you would expect big litigation in the US and in the big DMA cases to kind of focus on the key issues so almost by definition the government is asking the CMA to take a sort of be on the second tier and really deal with more peripheral issues so that clearly is you know if you're a global third party basically you're not going to invest in the UK processes it becomes a backwater and so that seems to be where this regime that the CMA spent many years on and you know I would like to remind people all that this is a regime that you know quasi-cartoing and relays some you know all sorts of secretary of state with very different views within the conservative party have supported it so again it seems to be an odd decision to have you know something that really should help with productivity opening up some disclosed ecosystems I think it's just it goes completely against the idea of focus on productivity and growth. Let's turn to the kind of decision that many think the government has in mind the Vodafone 3 merger which combined two of the four major UK mobile telecoms providers. A decade ago the CMA supported the European Commission's prohibition of a four to three merger in that sector arguing it would harm consumers and lead to higher prices. 2024 the CMA reached a broadly similar view on the transactions immediate impact but approved the merger on the basis of commitments made by the merging companies to invest 11 billion pounds in the UK and to cap prices for three years. Now this seems from the cheap seats like a highly significant change in policy. Is it right to view it as such? What's your view of the decision and does it suggest the CMA will be open to approving other transactions on the basis of similar kinds of investment commitments in the future? Let's start with Marcus. So two things there has certainly been a massive shift in CMA policy this year but two it wasn't the Vodafone 3 decision it was three other decisions that happened after so let me unpack that a bit. On the Vodafone 3 quickly that was investigated and concluded while I was still on the board of the CMA and I can say that it was the decision was highly consistent with and in line with the approach that the board and I had set in place three years ago as well as the Reform Phase 2 process which was essentially to say look at potential harms of a merger to consumers and customers also look at the potential benefits that scale and efficiency could bring to innovation and competitive dynamism and steadiness of the remaining players and how that could benefit consumers and then make sure that there are incentives in place that minimise the former and maximise and guarantee the latter but be completely wary of any solution that requires a bunch of additional infrastructure for monitoring or process for monitoring etc. And I think the group's assessment in that case was very much in line with that. Yes, there were four players but there are really only two effective players in terms of ability to compete to invest etc. And the result of the decision leads to three players who are independently far more competitive and will bring far more diamonds into the market and the committed investments are protected because there is an existing infrastructure in there called OFCON who can make sure that everything that is committed gets implemented at no extra cost at no extra burden. But the important point of your question I think, I think what you're really asking is has there been a shift in policy and you know absolutely since the government intervened in the CMA in January you can see I think a real shift in policy in three areas in fact. You can see it in digital competition enforcement. You can see it in mergers and it looks like, I mean I hope we won't see it in consumer protection but so far it looks like it might be happening there as well. So talking about the first shift in digital it seems to be to go slow and low if you want to call it that way in enforcing the new digital markets competition regime that parliament put in place. I think it's worth remembering the context here which is that the UK approach for the new digital markets competition legislation which is a very flexible, very pragmatic and a very proportionate approach, that was voted in by parliament precisely to ensure that the UK tech ecosystem could thrive and that UK businesses or businesses operating in the UK and consumers could be free to choose the services they want to use, when they want to use it, who they want to use it from and to ensure that the substantial and entrenched market power of a very small handful of powerful firms in the UK's economy's most critical markets and digital infrastructure, they want to make sure that that did not end up restricting customer choice or holding back innovation or stifling the dynamism and access to customers that the bulk of the business operating in the UK whether or not there are digital businesses sort of need to be able to raise productivity and growth. And so when that law became effective on the 1st of January this year at the CMA we'd already had a lot of time to prepare and so the day the law became effective we had launched our detailed guidance and we had said very clearly that within the first six months we'd be opening three strategic market status investigations and we launched the first two pretty much straight away. And so then a week later the government intervened and everything changed and so you've seen this policy shift to effectively go much slower and much lower in implementation in taking any meaningful action. So for example one the decision was made not to pursue the third strategic market investigation to kick that in the long grass, two on the remaining two investigations that the board had already launched before this happened, I think Andrea already commented on it the provisional findings that have been published, some potential remedies proposed but the only ones I think that have any chance of being executed in any impactful timeframe will be what they call the category one remedies and the general consensus seems to be that these are not going to make any material difference either to the harms that the CMA itself identified nor to the restrictions on choice nor on innovation or to access nor have really any material impact on improving moving to better outcomes whether it's for consumers or businesses using the services. And then three I think in cloud John already highlighted it both Ofcom and then the CMA group found very clearly that competition wasn't working well for business customers in that market but there's no action taken. So on the digital competition and forth I think you see a real shift that way. I think the second policy shift is indeed in mergers which seems to be and that's how it's now being seen that there is a willingness to waive through mergers even when they seem to cut short or cut off competition and I'm quite likely to damage innovation or race prices for consumers or business customers and I think the best example of that is the global business travel merger that was looked at and provisionally blocked before January and then it was cleared after January. So I think that's quite a shift and I think the community of corporate lawyers and advisors and M&A certainly see it as quite a almost remarkable precedent which I think will be hard to ignore for the next merger and the next and that will make it harder for the CMA and the government in the long run. I think the last area very quickly in consumer protection, I think the jury's still out and I very much hope that there isn't going to be a policy shift but it's just that any work or even reference to helping consumers with their cost of living or helping consumers get back some control when the general sentiment is that they feel increasingly ripped off. It's hard to find and it's quite hard to point at least over the last nine months to any actions that the CMA has taken that bring tangible demonstrable benefits to consumers but it may be that that's coming imminently or down the road. Marcus, thank you. Let me turn to Andrea, Vodafone 3. What do you make of it? I mean, again, I'd be conflicted because I was working for a main complaint in it. I mean, I was surprised that some of the space, I know where I work, extensive running 2016 case, I was working on this type of deals when I was at Ofcom. I mean, look, I think there is a scenario which is what Marcus talks about, which is perfectly plausible where everything goes well, there are three players, they invest and they compete hard. I think there are also plausible scenarios where that doesn't happen either because of some form of toxic collusion which wasn't really looked into or because in the end, some of these investment doesn't happen and quite conveniently the other two players don't invest. At the end of the day, I think measure control is also about risk, how much risk you want to take on behalf of consumers. I think the CMA for this decision decided to take on quite a lot of risk. I mean, this is a market where essentially the barriers to enter and expansion are massive. And so if you get it wrong, it's not like other markets where there's also dynamic competition at the margins and you say, okay, I find someone is making too much money for a year or two and then something happens. So the risk here is really high. So personally, I would have been more risk averse, but, you know, I'll be very happy as a UK consumer if Marcus scenario plays out, which as I said, is absolutely possible and plausible. So it's not a irrational decision, but I think it is a pre-risky one. John, anything to say? I advise on that case. I change the advice I give to clients about mergers as a result of that case. So a significant case. I think it's a significant case. I also, by the way, changed it after the travel agents decision. So I probably, unlike Marcus, I think it was the first one where I began to change my advice to clients on getting deals through and since then I've changed it again and again. And I think as a result of that, there's likelihood is the CMA, the selection of cases that have now come to the CMA is much more likely to be, you know, three to twos that would never have seen the light of day before. And that's going to present the government with an interesting dilemma when it sees cases like that being approved by the CMA in domestic markets. It sounds like then you're all furiously agreeing it's a more favorable enforcement environment for mergers in the UK. You'll know well that following the strategic steer at the start of the year, the CMA is working to implement what it calls the 4Ps, pace predictability, proportionality and process. What do you think this will mean in practice, Andrea? I mean, I think so pace, I agree, and if anyone who worked with me at the CMA knows how impatient I became about lack of pace, so 100% behind. Process obviously will agree with the issue with processes. There is a trade-off at times between timeliness, pace and process. But the two other criteria I struggle a bit more with. So proportionality, we all know from litigation that it can become a byword for weak enforcement in the sense that we all agree that intervention should be proportioned. The question really is the level of risk you take. And so if you try to be too cute and too targeted to be really proportioned, I think there's a real risk that you under enforce. I mean, obviously the CMA leadership are super aware of it, so we will see. But I think that that is a risk. And then the final one is predictability, which to be honest, I think the current system is less predictable than the one before. Because at the moment essentially the CMA is saying, look, the door is open for creative remedies for trying to find solutions, which I agree or disagree with, but it does increase. It does reduce predictability because at the end of the day, as John was saying, certainly during my tenure, I think an horizontal three to two merger would not happen because unique or, you know, your colleagues would say, look, the risk is just too high. Let's not do that. I think now there will be a bunch of three to two mergers going to the CMA. We'll see what happens. And so in that sense, I'm not sure that really increases predictability at the moment. John, the four Ps, I mean, Andrea summarized it well. I do think the CMA was already working on quite a few of these before this sort of shock therapy was administered. And the shock therapy may have accelerated some of them in a way that might be more difficult to do in steady state. And if it is difficult to drive change in steady state, a burning platform can sometimes be helpful. But I agree with Andrea's assessment of them. Two of them are quite sensible things to be doing. Two of them have trade-offs. Last word, Marcus. Three quick things. I mean, on the substance, it's good. I mean, the four Ps are, I mean, markets are like four Ps, you know, so it's great sort of buzzwords, I guess. But I mean, on the substance of the buzzwords, as John and others have commented, much of the work was underway, the good stuff in terms of getting things done faster, making sure it was clear to businesses and consumers what are the outcomes we want to achieve, simplify the process, focus on solutions, get a decision faster. That's the language we used when I was chairing now, four Ps, and that's great. The second thing I'd say, though, that if, and it's thinking medium term, if an organization keeps focusing everything they say on, we're doing the four Ps, we've changed because we're doing four Ps, you've got to really make sure you then deliver. And so it's really going to be important for the CMA to be seen to not just talk about increasing the pace, making things simpler, but it's got to be seen to happen, otherwise people will stop leading you. And third, and I think this is the most important, I think the CMA needs to be careful that it doesn't inadvertently end up losing legitimacy and reason for being, because if you talk to a person in the street and say, and they want to know, you know, a consumer, how are you helping me as a consumer, or how are you helping me as an innovator or a child's challenger or as a business? And you say, well, you know, I'm working on pace proportionality process, they kind of look at you and say, well, sorry, how are you helping me again? And so if in the last nine months, you don't have any action, which is what we've seen, there's no real actions to bring more choice and better deals to consumers that we can point to. There's no real action to open markets innovation as people have commented on some of the important markets and tackle some of the declines in competitiveness, letting through merging even those that many people think are anti-competitive. Yeah, at some point, if you have a government that's cash strapped, and it's looking for funds, and you have an agency that's not doing anything that they can point to that actually brings benefits to the constituents of consumers and/or businesses, and you focus on being internal, and you start making announcements about, well, we're going to do some research about research that has been done on productivity, you are at risk of some government, whether it's the current one or the next one, saying, well, maybe we don't need as big a CMA and we can save some money. And that I think is dangerous. So I think the CMA needs to reflect on how do we get back to really delivering positive impact that we can point to. Thank you, Marcus. Before I turn to ask you each about your predictions and hopes for UK enforcement, a question on the CMA's independence. As you know, some suggested that in replacing Marcus as chair of the CMA at the start of this year, the government bowled to pressure from the business community. What's your view and has the CMA's independence been compromised in any way, starting with John? I mean, there are no other contending reasons I'm aware of other than the hurry to the business community if there is one. I haven't heard it yet. And secondly, we've already discussed it. I think everybody on the panel has said, yes, there's been an effect on independence. It will take some time to work out how persistent and how serious that is, but there has been an effect on independence. Andrea? I would agree. I mean, the other point that I think people are underestimating is this attacks on regulators also will have any implications for the kind of senior talent going into these agencies. You know, to be honest, you know, take people like Sarah, who had, you know, successful career in the private sector or me, I'm not sure we would apply for these roles. You know, if they become more like senior civil service roles, where essentially you are supposed to, you know, essentially follow very closely a strategic steer that you get from the government of the day, it's a different job description. And as Marcus said, you know, I think there are questions about the far power of the CMA and what the CMA really needs to do. So I think clearly, independence has been compromised, certainly what happened to Marcus was very bad, I think in itself, but also as a signal generally. And it's not the CMA specific thing, I mean, obviously, FCA has been under a lot of pressure of comment is under a lot of pressure. And I think, I mean, Sarah has been very clear that if the government wants to change the rules, for instance, increase, you know, public interest considerations, emergent control or other things, I mean, that's probably the best way of doing it, rather than the current system, which is, as I said, is not really stable, because it's still technically is a super independent agency with double independence, but with a government clearly very much breathing down their neck on a number of issues. So yeah, we'll see how it plays out. Okay, so I'm not going to ask you to comment on yourself, but you have said some things about the importance of maintaining CMA independence and the government has gone out of its way to make statements to that effect. What's your view on this question? Well, look, it's very, maybe three things. It's really, it's been widely known, it's widely known, it's very clear that a handful, it's not just business in general, a handful, a very small handful of large global technology platforms were well resourced, have been lobbying the labor government fiercely from before they took power to, to the day they took power to today to give them exemption from competition and consumer protection laws, to make them exempt from copyright law, to make them exempt from rules on fake reviews, to give them exemption from the rules that government broadcast media, etc. And so, you know, to the extent that there's been a meeting every single day with the senior minister involving a few firms, as has been widely reported. Secondly, it was clear, and we had made it clear when I was chair, and I made it clear personally that we would not make anybody exempt from any rule, competition law, consumer protection law that we were tasked by parliament for enforcing. And so that didn't mean being aggressive against one firm over another, but just treating everybody equally. And third, you see the result, and you see the results also in the steer, which as we discussed is a 180 degree term. And fourthly, actually, you see the result in the actions, I mean, the changes in policy in practice that we've seen, the decisions being made or not made in digital emerges and potentially in consumer are already evidenced, I think, with the fact that to the extent that there is some independent decision making, it's been severely compromised. I mean, the last thing I'd comment is that whenever any organisation says a lot that they're independent tends to suggest that they're not. Let's finish with your predictions, your hopes for UK enforcement, starting with John and Andrea, and then finishing up with Marcus. I mean, we haven't discussed competition enforcement a lot. I agree with what's being said about mergers, digital and consumer, but actually competition enforcement and the market investigation regime are key elements of the programme. And it is unclear to me that there is a programme to improve those at the moment, and that's probably maybe one of the areas where they might find greater political consensus, but certainly worth exploring. I mean, I think the next year or two essentially will still see the CMA doing the cases the way they've always done it. So the cases are, you know, I'm currently doing a phase two merger, I think it's the only phase two merger going on, and it's very detailed and properly done. So that will continue. I think for bigger complex deals, there will be lots of lobbying to government in parallel, which might feed through the CMA, we'll see. And then the CMA is doing, I think, Sarah and the team are doing the smartest thing, which is really to try to lean into the government agenda so that you see market studies on civil engineering, the studies on past industrial strategies, scale ups, so they are essentially using some of the CMA's firepower to support the government's agenda analytically in many ways. It's a bit of a strange situation because probably it should be government departments doing this work, but government departments have been depleted. So that is, I think, the smart thing to do, but it's not really the core mission of the CMA. So it's all a bit of a shift there. So personally, I think next year or two, we'll play out like this. And then at some point, these issues about, for instance, not doing much on the global stuff will come back to haunt it. I think, as John was saying, there might be some mergers approved that shouldn't be approved, which might create some complaints. So eventually, I think there's going to be some pressures because clearly there are serious losers from the current position that the government has imposed on the CMA, and these losers will organize and complain and do something. Marcus, predictions, hopes? Well, I mean, it does a looking into the future for competition policy and enforcement or consumer protection policy enforcement. I think you can't do that in isolation. It's very closely linked to economic policy. And in fact, competition policy is part of economic policy. It's one of multiple parts. So you need to take a system view. And I'm not, I can't really make predictions on either economic policy or competition policy because now and then, and usually it's so heavily impacted by politics, and so the direction is going to be driven by politics and by the decisions of very few people. All I can hope is that from, you know, clearly from an economy perspective, the UK regains its confidence in the ability of free and open markets, whether that's domestically or internationally, to drive productivity and growth and that the CMA, you know, regains its confidence and its energy in helping to make sure that those free and open competitive markets thrive. Mr. John Andrea, it's been a truly fascinating session. We've all lived through an extraordinary time in the UK competition world and it's going to be incredibly interesting to see what the next few years hold. In the meantime, thank you for your time, your insights, and most of all, your candor. I'm Nick Levy, host of the Antitrust Review, and I look forward to welcoming you to the next edition. Thank you for listening. [BLANK_AUDIO]