Philip Booth: The Government needs to get tough (with itself) on competition policy

17 Dec

Philip Booth is Professor of Finance, Public Policy and Ethics at St. Mary’s University, Twickenham.

There is an old joke along the lines of “why is there only one monopolies’ commission?”. It is so lame, you won’t even see it in your Christmas cracker this year. However, there is an important point to it. When it comes to competition policy, the Government marks its own homework.

The UK’s Competition and Markets Authority (CMA) has immense powers, which it threatens to use with ever more vigour against tech firms. However, the biggest monopolies are in the provision of public services such as health and education.

In addition, many of the most important impediments to competition in the private sector come from the government in the form of regulations that restrict entry or load costs onto small businesses.

John Penrose MP is currently conducting a review of competition policy. Right at the top of his list should be competition in government-provided services and the way in which government itself, especially through regulation, impedes competition.

When it comes to public services, governments have to have a monopoly of some things – defence, penal systems, some aspects of policing and, it is worth adding in current times, certain genuine public health functions. However, experience in all these areas, especially recent experience in public health, demonstrates the limitations of state monopolies. As such, both Labour and Conservative governments have promoted school choice and also, with no discernible success, tried to promote competition in the provision of healthcare.

Just as governments of the left develop institutions designed to embed their reforms and make them difficult to reverse, supporters of competition and markets should do the same. This is especially so where competition relates to what we might regard as a natural right, such as that of a parent to choose a school for their child. Such a right is so fundamental to those of us who believe in a free society, that it needs protection in the wider political and institutional landscape.

Though most readers of this blog will probably not be supporters of the European Union, its policies in the areas of state aid and competition and public services did have some merit. They provided protection from the worst excesses of monopoly in some aspects of government service provision (though its effect was limited by the various legal exceptions).

There are two actions that the government should take. Firstly, CMA should be given a specific statutory duty to investigate impediments to competition arising from government action, especially in relation to government regulation. Crucially, such investigations should not have to relate to a specific market inquiry. For example, the CMA could examine the effect of land-use planning regulations on competition across a range of markets (education, childcare, retail etc) or the impact of GDPR regulations on the relative cost structure of small and large businesses. Secondly, it should have a like duty to scrutinise state monopolies.

Governments and barriers to entry

Regulation is such an effective bar to competition that it can be deliberately captured by incumbent businesses in order to frustrate market entry. Regulation may also be captured by the regulatory body itself which may discharge its functions by trying to reduce the risk of scandals within markets by writing ever-more regulation.

An uncosted side effect of regulation may well be to raise barriers to entry. Both market incumbents and their regulators are likely to have cognitive biases that lead them to favour regulatory solutions to problems within markets whilst ignoring the effects of competition.

Two examples are worth noting. The Financial Conduct Authority (FCA) has a statutory duty to promote competition and yet its very existence impedes competition. The process of authorisation for a new financial adviser can take six months or more and the FCA regulatory handbook has around 1,000 sections. This kind of regulation creates a significant advantage to incumbents and makes innovation especially difficult.

Although the FCA has a statutory duty to promote competition, its other objectives will always take precedence and the FCA is never held properly to account for its failure to promote competition.

A second example relates to occupational licensing. Currently, occupational licensing and certification covers 40 per cent of all employees. This figure has grown dramatically in recent years and is much higher than equivalent figures in, for example, Sweden and Denmark. There is widespread international evidence that occupational licensing damages consumers, reduces competition, and undermines social mobility.

However, though the CMA may examine a problem such as this as a minor aspect of a particular inquiry in relation to a specific market, the issue as a whole and its cumulative effects are ignored. The CMA therefore needs wide-ranging powers to investigate such government-imposed impediments to competition regardless of whether the investigation is related to a specific market inquiry.

Government monopolies

In addition, the CMA should have a statutory duty to investigate markets where governments are monopoly providers.

The CMA has a statutory duty to “promote competition, both within and outside the UK, for the benefit of consumers”. Its mission is to “make markets work well in the interests of consumers, businesses and the economy”. It’s role and effectiveness in dealing with the impact of monopoly on people’s lives would be much more effective if these statutory duties were expanded to explicitly include the promotion of competition in relation to government-provided services, such as healthcare and education. Though current EU provisions in these areas will remain after Brexit, they will be toothless: the government would be marking its own homework.

Much government policy in recent years has involved the promotion of competition in education. This needs to be reinforced by providing families with the protection of competition law.

To begin with, parents or those establishing free schools in the case of education, or various interested parties in the case of healthcare, should be able to take enforceable action, backed up by competition law, where one government body or a layer of government is acting in a way which subverts the government’s own policy in relation to promoting competition in public services. For example, parents should be able to take action if local authorities obstruct the development of a free school. Such actions, if successful, could come with penalties imposed on the offending body.

There should also be a general obligation on the CMA to investigate situations where the government itself is restricting competition in the provision of services (for example by providing its own service free at the point of use).

Summary

Current government and CMA competition policy looks at the splinter in the private sector’s eye whilst ignoring the beam in the state’s eye. The Government needs to have a more robust policy and enforcement regime. This will counter-balance the tendency towards monopoly, protectionism and regulation that pervades governments and will ensure that a reforming government can embed its reforms more deeply in the institutional landscape.

It can ensure that we can benefit from competition where monopoly is most deeply embedded – in areas of the economy protected by government regulation and in the provision of government services.

Joel Gladwin: International rivals are catching up on the UK’s fintech success. Here’s how we can defend our crown.

27 Nov

Joel Gladwin is Head of Policy at the Coalition for a Digital Economy (Coadec).

Our fintech sector is a great British success story. Investment into UK fintech companies is at record highs, accounting for over a third of all investment into the sector in Europe. Last year, London had more people working in fintech and a greater number of venture capital investment deals than any other city in the world.

Companies like Monzo, Starling, Revolut and TransferWise are all less than 10 years old but they have matured into global brands in their own right. They have also grown into formidable rivals for customers and their cash, putting pressure on the rest of the financial services sector to step outside its comfort zone, innovate rapidly and embrace a fail-fast, customer-centric culture.

Our historic strength in financial services, combined with forward-thinking regulators in the Financial Conduct Authority (FCA) and pro-competition policy in the form of open banking, have all contributed to establishing London as the fintech capital of the world.

But that is enough backslapping for now.

Not only are our international rivals catching up when it comes to the volume of fintech deals, they are also drawing up plans to open up more financial – as well as non-financial – data for their fintechs to access and innovate. These plans go well beyond the limited scope of our own open banking regime. The key to defending our fintech crown will be building on this momentum.

Thankfully, the Government is already starting to think seriously about what comes next, with the Treasury and the FCA embarking upon a number of reviews this year including on payments regulations, open finance and the broader UK fintech sector.

Moving beyond open banking to open finance is the next logical step for our fintech sector’s growth and development. It will open up the savings, credit, mortgages and pensions sectors for innovation – and, ultimately, bring consumers more choice, convenience, and ease when it comes to managing their finances.

In its latest Digital Finance Strategy the EU has committed to establishing an open finance framework by 2024. As someone who was involved in the lobbying battles of getting PSD2 over the line – the EU regulation that made open banking possible – I know full well that this is an extremely ambitious target by European standards.

After all, the bureaucratic wranglings of Brussels led PSD2 to be an extremely lengthy project. It spanned five years (2013 to 2018), one directive, eight guidelines, six technical standards and seven opinions. And it has still not been delivered in parts of Europe to this very day. The UK’s approach towards a functional open finance ecosystem can now be quicker, leaner and more agile.

By returning to our principles based approach to regulation, rather than overly prescriptive technical standards, and enabling the market of AP specialists to get on and build the connections for open finance from below, new research by The Coalition for a Digital Economy (Coadec) suggests that it would be possible to unlock the benefits of open in two years.

This isn’t a novel idea either. It has been the approach taken by the Australian Government which has introduced arguably the most expansive open data regulatory initiative in the world.

The Australian Consumer Data Right (CDR) will give consumers the right to access not only their financial data but also utility and telecom data by 2021, even though they started on their journey two years later than us. A market-led, principles-based regulatory framework will allow the UK to deliver open finance much quicker than our near neighbours.

The Chancellor has also made it clear that he will “review our regulatory framework on financial services” and that “not being inside the EU more generally gives us a chance to do things differently.” One area that desperately needs the Treasury’s attention is the innovation-killing, anti-competitive, EU regulation that forces customers to re-authenticate third party access with their bank every 90 days – known as Secure Customer Authentication (SCA).

Imagine having to send your accountant, bookkeeper or financial adviser a new letter of authority every 90 days just so they can continue to work on your behalf. The chances of forgetting to do so would be high – potentially missing filing deadlines, payroll or important insights on your financial health. But this is precisely the situation that customers of accountancy software and financial adviser platforms face.

As a result, fintechs are forced to endure customer attrition rates between 13 per cent and 65 per cent according to industry data, rates which are not viable for any business at either end of the spectrum. This is made even worse by this process being managed by the very same banks for which open banking measures were introduced to provide competition. There is little incentive for them to get this right.

These barriers have thwarted open banking’s potential to add $1.4 billion to the UK’s GDP on an annual basis, according to analysis from the Centre for Economics & Business Research. It is vital that we address them.

The UK’s regulatory influence on the global stage will endure. Informal channels, networks and knowledge communities have always played a critical role in shaping the content and application of policy frameworks, especially in areas where technological progress necessitates new approaches such as fintech. By moving quickly to embrace an open finance environment, and correcting the deficiencies within existing European regulation, the UK can continue to lead on fintech.