Unfinished Reform of the Institutions Enforcing UK Competition Law

The period since 1998 has seen major changes in competition law, including: public interest was replaced by promotion of competition as the primary duty; anticompetitive agreements and abuse of a dominant position were prohibited, with significant penalties for breach; and the Minister withdrew from case decisions, making the institutions determinative. There were also major organisational changes, including merger of the OFT and CC to form the CMA, and establishment of the CAT as an appeals body. I consider the evolution of these institutions from the perspective of how they frame and influence the quality of first instance determinations. Institutions are hostages to their history, and I trace some of the problems faced by the CMA to its institutional roots. New challenges beyond its control are also identified. Reform is needed. Some of the CMA’s suggestions for legislation are misguided, particularly in replacing its competition duty with ‘the consumer interest’, and reducing the standard of review by the CAT without reform of the CMA. Alternative proposals are considered, including a potential change to a prosecutorial system. I argue that genuinely independent decision-making within the CMA should be preferred and would permit a more limited standard of review.