Jonathan DC Turner
Barrister
Three Stone Chambers
3 Stone Buildings
Lincoln's Inn
London WC2A 3XL, UK
Tel: +44 (0)20 7242 4937
In 1984 I wrote an article entitled The need for an effective competition policy for the European Intellectual Property Review. At that time, the establishment view, reflected in the 1979 Green Paper, was that only minor tinkering with the existing system of UK competition law was required. The Competition Act 1980 contained a broad definition of anti-competitive practices but did not prohibit them. It merely provided a cumbersome and toothless system for investigating them.
My article argued that the lack of an effective competition law had been a principal cause of Britain’s relative economic decline in the course of the 20th century. I concluded:
“The concept that monopolies and restrictive practices may and usually do operate against the public interest is a British invention, which has been more exploited abroad than at home. It is high time this changed. The Government should introduce legislation whereby all unjustified anti-competitive practices are unconditionally prohibited, subjected to unlimited fines, and treated as breaches of statutory duty entitling third parties to compensation for any damage suffered as a result of their adoption. .... Difficulties which may arise in deciding whether such practices are ‘unjustified’ could be substantially mitigated by providing that regard should be had to decisions taken in the application of corresponding provisions of US and European Communities law. No single measure would more effectively implement the present Government’s declared policy of promoting competition.”
Subsequently I prepared a draft Bill based on these ideas and circulated it with the article to policy-makers in the main political parties. My draft Bill included the key elements now to be found in the 1998 Act: automatic prohibition of restrictive agreements and abuses of market power; alignment with EC competition law; interpretation by reference to decisions of the European Court and Commission; and the OFT to have a role equivalent to that of EC Commission.
The Social Democratic Party, recently created by Roy Jenkins and others, was formulating its policies in 1985. As a member, I objected to an initial proposal regarding competition policy which followed the unsatisfactory approach of the 1979 Green Paper. I advocated instead an effective prohibition-based system as discussed in my article and draft Bill. This view prevailed and became the policy of the SDP and subsequently of the Liberal-SDP Alliance.
I also corresponded with the office of Margaret Thatcher, then Prime Minister. Not wishing to be outflanked on the economy, the Conservative party made a commitment in its manifesto in the 1987 election to carry out a further review of competition policy. The ensuing Green Paper of 1988 accepted the case for radical reform and the principle of harmonisation with EC competition law.
The government announced its intention to introduce a prohibition based on article 85 of the Treaty of Rome in the 1989-1990. However, the proposal was withdrawn at the last moment from the Queen's Speech, together with other potentially contentious Bills, following the political crisis relating to the sale of the Westland Helicopter company.
Faced with this impasse, I wrote to Gordon Brown in the Labour Party in March 1990. I pointed out that an effective competition policy enables inflation to be controlled without excessive interest rates; that markets must be regulated to work for the benefit of society; and that it is no accident that US Democrats favour stronger enforcement of antitrust laws while Republicans favour relaxing them. This view was consonant with the concept of "New Labour", became Labour Party policy, and was finally enacted after the Labour party swept to power in the 1997 election.