The big growth reset in competition law: Perception is everything

Concurrences COMPETITION LAW REVIEW

United Kingdom: The big growth reset in competition law - Perception is everything

ABSTRACT

The Competition and Markets Authority is enduring one of the most turbulent periods of its decade-long history, following the politically charged departure of its former chairman, Marcus Bokkerink, in January twenty twenty-five. Having been issued a government steer to support economic growth and investment, the Competition and Markets Authority has proceeded to consult on a series of guidance updates and procedural reforms, forged under a new "4Ps" mantra, focused on pace, predictability, proportionality, and process. This article considers the emergence of the growth agenda under UK competition law and, in particular, efforts by the government to regain control of the growth discourse by capitalising on the Competition and Markets Authority's (largely ill-founded) reputation as an overzealous enforcer of international renown. It suggests that the government's intervention in the leadership and strategic vision of the Competition and Markets Authority likely coincided with a reimagining of the 4Ps as a fully fledged enforcement framework, prompting the Competition and Markets Authority to accelerate its pre-existing efforts to nurture a more business-friendly approach to its mergers and markets regime. Having exaggerated Bokkerink's role at the helm of an oft-regarded bureaucratic authority, his removal enabled the government to send a clear message to the international investment community that the United Kingdom is "open for business."

One. After a landslide victory in the twenty twenty-four general election, the United Kingdom's Labour government has pressed ahead with its priority mission to kickstart economic growth, with the aim of securing the highest sustained growth in the G seven. Underpinning this pursuit is the promise of a "securonomics" rethink for Britain, a term coined by the now-chancellor, Rachel Reeves, to describe an approach to economic management that prioritises building the strength and resilience of the economy. Although marking a departure from free market ideology, the chancellor has been keen to present the approach as less "big state" and more "smart and strategic state," focused on rebalancing market forces and state control, with a greater role afforded to the latter, as part of an enduring partnership with business.

Two. While the growth mission was central to the Labour Party's bid for government, less was known of the changes this would usher in for market regulation and regulators, save for a pledge to nurture business through a stable policy environment, with economic regulation supporting growth and investment, enabling innovation, promoting competition, and working for consumers. The Labour manifesto was silent on specific plans for competition law reform, completely abandoning reference to "strengthening" merger or takeover rules-a feature of each of the party's three previous manifestos. Instead, it placed emphasis on attracting foreign direct investment, in a move not dissimilar to the "open for business" rhetoric of the Coalition and Conservative governments of the twenty tens. Indeed, during its first twelve months in power, the priority focus of the government's growth mission appeared not to be about substantive law reform. Rather, it centred around resetting the discourse on the United Kingdom as an investment destination, in an effort to internationally paint the United Kingdom as an attractive place to invest and do business.

Three. Nonetheless, the government's focus on changing perceptions did not have the effect of insulating the Competition and Markets Authority-and other regulators-from immediate upheaval. Quite the opposite is true, despite the Labour Party being generally supportive of the Competition and Markets Authority during its years on the opposition benches. A modern industrial strategy has emerged, rooted in an "unreservedly pro-business" substrate. Yet also underscoring the importance of competition and consumer policy as a lever for creating the necessary certainty for long-term investment in high-growth sectors, as well as for incentivising innovation and addressing entry and exit barriers in the interests of start-ups, scale-ups and global superstars alike. When launching his government's industrial strategy to a room of international investors, the prime minister, Sir Keir Starmer, vowed to "rip out" the regulatory bureaucracy that blocks investment. He vowed to ensure that every regulator, especially economic and competition regulators, "takes growth as seriously as this room does." The message was simple, if not simplistic: growth needs investment, investment calls for deregulation, and deregulation requires regulators to fall into line by cutting red tape.

Four. In the wake of this pro-growth battle cry, the Competition and Markets Authority was forced to navigate a turbulent period of unprecedented political pressure-and not without casualties. A difference in ideology on how best to support growth through competition enforcement would, ultimately, culminate in the government shaking up the leadership of the Competition and Markets Authority. The incumbent chair, Marcus Bokkerink, was unceremoniously forced to resign in January twenty twenty-five, and replaced on an interim basis by Doug Gurr (chair of the Alan Turing Institute and, previously, an Amazon executive).

Five. Since Bokkerink's departure, the Competition and Markets Authority has proceeded to consult on and implement an expansive package of "business-friendly" operational reforms, guided by: (i) a new "4Ps" enforcement framework (focused on addressing stakeholder concerns around the pace, predictability, proportionality and process of the Competition and Markets Authority's work), (ii) its interim chair's commitment to drive forward efficiency, expertise and engagement within the agency and (iii)-perhaps most tellingly-a government-issued strategic steer for the Competition and Markets Authority to prioritise growth and investment in areas where it has discretion to do so.

Six. It seems likely that the government anticipated the short-term impact its heavy-handedness would have on regulatory stability and investor confidence. The remarkable decision to remove the chair mid-term, in particular, evoked much speculation and concern around the future of independent regulatory intervention in the United Kingdom. Many interpretations of the government's intentions abound. Though some paint the removal of the chair as a chaotic and reactionary response to perceived rigidity within the Competition and Markets Authority, the government's interventions may also be interpreted as a more conscious and considered effort to regain control of the growth discourse, with the Competition and Markets Authority uniquely positioned as a conduit for the government's pro-business and pro-investment narrative. In particular, the Competition and Markets Authority was vulnerable to three pressure points, which the government saw an opportunity to seize upon.

Seven. The first was the Competition and Markets Authority's-largely ill-founded and hyperbolic-reputation as an overreaching and overzealous enforcer of merger control since Brexit, allowing the government to paint it as a chief culprit for low levels of foreign direct investment into the United Kingdom. At the very least, the government found itself in an opportune position to frame the Competition and Markets Authority as an archetypal bureaucratic regulator; the very kind the Prime Minister had pledged to reform. This corresponds to a wider political message that overstates and oversells-relative to macroeconomic policies-the degree to which individual regulators are capable of impacting growth. It creates a simpler (and politically more convenient) narrative of United Kingdom regulators as the primary inhibitors of investment in recent years, which the government then pledges to tame in order to move the growth dial.

Eight. Second, while the United Kingdom's other regulators-particularly, its financial watchdogs-have also been singled out for specific scorn, the Competition and Markets Authority's status as a cross-economy regulator of global notoriety made its leadership a lightning rod for criticism, marking them out as prime candidates for being made an example of-especially by a government determined to send a clear and powerful message of "change" to international investors, and a warning for other regulators to "get with the programme." The removal of the Competition and Markets Authority chair carries huge symbolic weight and, while the government's deregulatory agenda has faced pushback from some of the most senior regulatory figures in the land,

touch paper under the CMA was always likely to create the widest ripples. In this sense, the moment the chair did not unequivocally endorse the executive vision for the CMA's role in the growth mission, the government sought to turn the tables, presenting the chair's defenestration as a pivotal inflection point on the road to deregulation. Regardless of the government's actual intentions, Marcus Bokkerink's forced resignation, and the appointment of a former Big Tech executive in his place, combined to drastically reshape the discourse on competition and growth.

Ninth, with the CMA having already invested over a year devising, consulting on and implementing several pro-business reforms to its processes-most notably, revisions to its phase two merger procedure-the circumstances allowed for a strategic rebranding of the reforms, to align more emphatically with the "open for business" narrative of the government. While the government expressed frustration toward the CMA's original plans for supporting growth eighteen-criticised by some observers as a "repackaged" continuation of its existing plans nineteen-it had paved the way for the four Ps focus to be reimagined as a fully fledged strategic framework; not "merely" in the name of agility, transparency, efficiency and engagement, twenty but in the name of growth and investor confidence. By positioning the four Ps at the heart of its operations, the CMA has been able to present subsequent reforms-and several high-profile decisions-through a "businessfriendly" lens. While it remains to be seen whether the new framework will have the desired effect, the rhetorical value attributed to the four Ps-which has since become synonymous with the growth agenda-is already evident, such that it has entered into the daily lexicon of every senior figure at the CMA; becoming a staple phrase in speeches, conferences and media briefings across the course of twenty twenty-five. This, in part, can be interpreted as the CMA recognising-or being instructed of-its role in promoting the government's intended narrative of regulators "regulating for growth."

Tenth, in the overall scheme of things, although the CMA's new growth-focused strategic steer has no doubt informed the scope and accelerated the rollout of its reform agenda, it can be queried whether it actually prompted a major departure from the path the CMA was already treading. It is difficult to see how some of the recent developments at the CMA would have come about were it not for a strong growth steer. However, for the most part, the CMA itself has emphasised that giving the four Ps treatment to its mergers and markets guidance amounts to "nothing new in the substantive sense" -or, at least, nothing it had not been on course to implement under the previous "investment, innovation and economic growth" steer issued to it by Rishi Sunak's Conservative government. To placate impatient ministers, half the battle for the CMA has been to change the mood music that accompanies its enforcement, something it hopes to achieve through the (now amplified) symbolic effect of the four Ps, even before businesses feel any tangible change to the lived experience.

Eleventh, conceptually framed, the CMA's efforts to nurture a more business-friendly merger regime since its headline-grabbing prohibition of the original Microsoft/Activision deal in twenty twenty-three - gathering pace after the seismic events of twenty twenty-five-have been interpreted as a classic case of the regulatory pendulum swinging back towards a less interventionist stance, following a period of perceived overenforcement. However, among the process changes the CMA is minded to pursue are several developments that stand to mark a sea change in the substance of its enforcement toolkit, both in terms of the scope of cases the CMA will review, and how it manages the outcome of cases that raise competition concerns.

Twelfth, if implemented, they will have a lasting impact on UK enforcement. They extend beyond a mere changing of the mood music and, potentially, offer a glimpse into the CMA's own survival instincts, where-through its reforms package-it has succeeded in strengthening its legitimacy with lawmakers and the business community. In doing so, it appears to have pre-empted the need for more drastic legislative reform; the government instead hinting at legislation that merely enshrines the essence of the four Ps into law and affords a statutory footing to the CMA's recalibrated approach to its mergers and markets functions. This is an intriguing variation on the traditional pendulum rationale, whereby the CMA's signalling and soft law reforms might be seen to have deliberately prevented a more pronounced swing towards deregulation.