Inclusive Competition: Frameworks of Inclusive Competition (Institutional, leadership)

Below, we have provided the full transcript of our panel discussion Inclusive Competition: Frameworks of Inclusive Competition (Institutional, leadership). Read below to see the timely discussion where a panel of experts discussed the role antitrust should play in addressing social issues such as unequal pay, discrimination, unequal access, gender gaps, racial issues, and more.

Anita BANICEVIC:

So, welcome everybody to CPI Live. My name is Anita Banicevic. I’m a partner at the law firm of Davies Ward Phillips & Vineberg in Toronto. And I am really pleased to have Jeanne Pratt, Chris Pike and Catherine Batchelor here with me today. Just by way of brief introduction, I’ll start with Chris. Chris is formerly at the OECD, but is now a partner and managing director at the Fideres, an economics firm focused on NHS litigation. We also have Jeanne Pratt who is a Senior Deputy Commissioner of the Mergers and Monopolistic Practices Branch at the Competition Bureau, and Catherine Batchelor, who is the director of the digital markets unit of the Competition and Markets Authority in the UK. So welcome everybody, and thank you for joining our panel today.

I wanted to start with Jeanne and Chris just to give a bit of background on the issue that we’ll be getting into in a little bit more detail today, and that’s really the concept of inclusive competition as we’ve been calling it. And maybe Jeanne, if I can start with you, the Bureau has been really at the forefront this idea of inclusive competition. And for those people that may not be as familiar with what the topic entails, or how to think about this issue, can you give us a sense of where this all started from your end?

Jeanne PRATT:

Sure. Before I start, I did want to say that any opinions or views I share are mine and don’t necessarily reflect the Competition Bureau Canada or the commissioner, but I’ll start with where this all started for us was really a larger Government of Canada initiative a few years ago called Gender-based Analysis Plus. So I’ll use the moniker GBA+. It’s not a program, it’s not a policy in and of itself, but it really was just the launch of an analytical tool for Government of Canada, for public servants, to identify assumptions and ask questions, to assess how diverse groups of people may experience government policies, programs and initiatives.

So in essence, it’s really about us as public servants thinking about the foundational assumptions, the objectives, the design and the implementation of various policies and programs just to make sure that we’re not missing impacts or unintended consequences in design and implementation. So, the one thing I’d want to make clear is GBA+ is not… It’s not something outside of our policy or legal framework under the competition act. It’s really a tool within our existing framework that may lead to more… we’re hoping will lead to more nuanced thinking and analysis.

The first kind of trigger for us as an agency to start thinking about this was in 2018 when we were asked to start conducting this analysis on the competition chapters of Canada’s free trade agreements. So we looked at this and we’re like, okay, well, where do we start? Because it wasn’t evident to us. So we went to do some research on the intersection of competition and diverse identity factors. And we realized there wasn’t a whole lot on the topic, but what we did find was this great paper written by Chris that it’s called what’s gender got to do with competition policy.

And so Chris’s paper led to the Bureau connecting to the OECD Competition Committee on the topic, and bringing it to the agenda of the OECD Competition Committee meetings. And then we doubled down on our investment. We tried to get some funding from the Department of Innovation, Science and Economic Development to get funding for the OECD gender and competition policy project, which has been going on now for a couple of years. So I think what I would say is it’s been a couple of years, it’s not like a new policy for us, and we’re still really at the beginning of the process. But as we’ve learned more, we see a huge opportunity to help us contribute to our core mandate, and especially post pandemic when we’re looking at economic recovery and growth in Canada.

I think most agencies around the world, in Canada, the pandemic has disproportionately impacted some of society’s most vulnerable, and that’s resulted in worsened economic outcomes, not only for those vulnerable populations, but also for Canada’s economic growth and productivity overall. So we see this as core to our mandate to harness the opportunity for healthy recovery to support inclusive growth, so that we unlock the greatest opportunity for participation in all sectors from all sources. And as a competition policy wonk, this is where competition comes into the mix.

We need to support growth by letting competition do its job to drive greater innovation and productivity. So we’re at the beginning of thinking about ways that we can incorporate consideration of these factors into our existing mandate and legal framework. So I don’t know, Anita, if you wanted me to go into some of the ways that we’re thinking this could impact our work, or I can leave it at that for now.

BANICEVIC:

So why don’t we, Jeanne, go to Chris. Chris can give us his background. You mentioned the paper that Chris had written initially. And then Jeanne, I would love to come back to you and maybe we can get into a bit of a more deeper dive at some of the considerations that the Bureau is looking at, as you say, from bringing it into its work and framework. But Chris, maybe just to get a bit of that grounding context, maybe you can tell us how you started looking at this issue and the impetus. I think there’s a unique story there in terms of why you even started to write about the topic in the first place.

Chris PIKE:

Yeah, thanks, Anita. Yeah, so I guess I started… So in 2017, I was writing with colleagues at the OECD, a paper about wealth and income inequality, and how competition policy interacted with that. And the fact that competition policy can help us address, to some extent, wealth and income and equality. And so after having done that, the next step, I suppose, in the thinking was to think, well, is there any connection with gender inequality? And so at the end of that year, I started thinking about what are the connections there. And that was quite, for me, a really interesting topic. My wife was setting up a mentoring program for women entrepreneurs in developing countries.

And so I was having a lot of conversations with her about the barriers to entrepreneurship for women trying to start businesses and so forth, and thinking about competition policy more generally. But it was really interesting to bring it down to kind of to antitrust itself. My kids were also going through childcare at that time, so I was getting familiar with these some of the dysfunctions of these childcare markets at the time, and thinking, wow, this must be able to work better than this, right, and this must be having other effects, so. So I threw all those threads into a blog, really, to try and answer the question, as Jeanne says, what’s gender got to do with competition policy that Tina Turner sort of referenced there.

And then after that, I thought that might be the end of it but, fortunately, that was when we had the Canadian proposal at the OECD to dig deeper into these issues. Fred, the committee chair at the OECD was really interested in the topic. And so despite a fair amount of skepticism, it’s fair to say. The OECD asked myself and Estefania Santacreu-Vasut, who’s a gender economic specialist, to go away and write a paper for the global forum on competition that year that could advance the thinking on what was really just inroads into the topic at that time.

There had been some papers. So Sally Hubbard had written a couple of articles that was broached the topic. And so I was trying to draw a bit of attention to that and then put it in a context that was recognizable for competition lawyers and economists really. So, that was how we got to that stage.

BANICEVIC:

That’s great. Thanks, Chris. And I will come back to you. I know you’ve written more subsequently, including at CPI, in our Antitrust Chronicle on the topic. That gets into, I think, a little bit more of a forward-thinking analysis of how we could take this topic a little bit deeper. But before we do that, maybe Catherine, I would like to get just your perspective as well. I think you’ve got such an interesting opportunity and really looking ahead at what the CMA’s doing with the digital markets unit. Maybe you can tell us a bit about your role and even just starting with the concept of inclusive competition, how you’re thinking about it in the context of what you’re trying to achieve at the CMA.

Catherine BATCHELOR:

Thank you. And just to say, thank you, it’s a pleasure to be asked to speak on such an interesting topic on such a great panel, so thank you. I think, rather selfishly, I’m probably more in taking mode than giving in this panel in the sense that with the digital markets unit, which is still in shadow form at the CMA. So we’re awaiting legislation before it is formally given its new role, its new powers to promote greater competition in digital markets. We have the luxury of a blank sheet of paper. So, we’re building a new function within the CMA from the ground up. That means new people, new approaches, new processes, new rules. And that means that we can really learn from the experiences of other authorities and other agencies, and really ensure that we are starting from the outset with a body, which is set up both to be inclusive in the way that it operates itself, but also in the way it carries out its functions.

So I can, like Jeanne, very happily talk you through some of the things that we’re thinking about from an agency perspective now or in a bit, whatever suits you best, Anita.

BANICEVIC:

Okay. Why don’t we start there and then maybe, Jeanne, you can take it from there and give us a bit of an update on where the Bureau’s thinking about these things. That’d be great.

BATCHELOR:

Of course. So I alluded to this, that there’s two elements to this. So in the UK, we have this thing called the public sector equality duty, and that requires us, as a public sector body, to look at how we eliminate discrimination, we advance equality of opportunity, and we foster good relationships between people with protected characteristics and those who don’t. And that applies, as I say, both within the CMA as a regulator, but also in how we carry out our statutory functions.

So, I’ll sort of focus on those two buckets, one, what are we doing to promote inclusivity through our work, and how are we organizing ourselves as an agency to ensure that we operate in an inclusive way. So, on how we promote inclusivity through our work. In recent years, I think you’ll probably see that the CMA has focused more on looking at the impact of our work on different types of consumers, particularly looking at the experiences of vulnerable consumers. And so we had a big program of work focused on vulnerable consumers, and actually you’ll see through some of our casework, that over the years, we’ve prioritized more and more issues, which are impacting on consumers who are vulnerable in some sense, say for example, we have done market studies on care homes, on funeral providers, and on guidance to IVF clinics on the misleading claims that they might be making.

So, this is clearly factored into the way that we’re prioritizing our work. We’ve also been focusing more and more on outreach to ensure that we are understanding the experiences of different groups of consumers in markets. And just recently we launched a new outreach program focused on working with third sector bodies on a range of issues like mental health, on BAME issues, on disability, on poverty and inequality. And this is really focused on making sure that we understand the experiences of those groups in markets, and then we can use that to factor it into our work. And therefore when we’re looking at a particular case, we’ve already got a foundational knowledge of both how to plug into those communities, but also some of the experiences or impact that particular behaviors might be having.

But I think we’re clear. There is always scope to go further. And as Jeanne said, we’re really at the start of a journey here. So we are asking ourselves some really hard questions around, well, actually, should we be more explicitly prioritizing cases which impact on protected groups? Should we be explicitly thinking about this in remedy design? When we’ve found a particular issue in a designing remedy, should we be explicitly looking at the impacts on particular groups to ensure that remedies are effective in delivering outcomes for all consumers? So there’s clearly more scope and we’re keen to learn, as I say, from others. On the second piece around, well, how do we, as an agency, operate in an inclusive way?

The business case is really clear. I think we’ve always recognized, as an authority, that diversity of thought leads to better judgments, better decisions. And it’s really important that we make sound decisions and that we’re representative of the consumers that we’re there to serve. And we recently published an equality, diversity and inclusion strategy. And alongside this, we’re examining some of our processes. So, for example, how do we build diverse case teams? How do we ensure that our decision makers are diverse?

And this is building on things that are already commonplace within the CMA. So, for example, case teams are already multidisciplinary. We already use teams from a range of different backgrounds, but should we be explicitly focusing on diversity and inclusion metrics within that? And similarly decision-making. I’m sure as every competition authority, we have robust processes for ensuring that decisions are challenged. Sometimes we have separation of decision-making, so you have a fresh pair of eyes, but actually, should we be explicitly applying a diversity inclusion lens to that?

And again, these are all really interesting questions keen to learn from others and their scope to go further. So when it comes to the DMU, as I say, we’re on a blank sheet of paper, lots to learn, but I think, as I say, the real luxury of being able to set this up from the outsets in a way that you don’t have to change later, that you can set this up at the beginning in a way that, as I say, both we are an inclusive function or agency, and that we are doing as much as we can in carrying out our work to promote inclusive outcomes. So I’m very looking forward to this discussion and hopefully many more to come.

PRATT:

All right. Well maybe I’ll just add, I think there’s a lot huge… a lot of commonality in terms of what Cat said and what we’re experiencing. This is about asking questions. There aren’t real, tangible examples of how this has impacted an outcome on a case, but we are really thinking about discussing inclusive approaches to all aspects of our work. So enforcement, advocacy, compliance and outreach, as well as, as Cat said, in our workplace. So just a couple of examples on enforcement.

We’re thinking about ways that we can ask more nuanced questions, about who’s affected by anti-competitive activity, and just incorporate that into our consideration of case selection and prioritization. So as Kat said, we’ve always looked at vulnerable consumers, but should we be looking at gradations of vulnerability, so that we can identify the maximum impact that we can have on our work to increase participation, lower barriers and really contribute to inclusive growth for our economy overall.

Another example in enforcement is just, we’ve always looked at consumers as a homogenous group in our analysis, and maybe we need to ask questions in appropriate cases as to whether or not there’s evidence that consumers actually see things differently from a demand perspective. Maybe the way we look at complementarity and substitutability is not necessarily reflective of how all consumers, view of it. Another example could be just the way we look at barriers to entry and expansion.

So, access to capital may not be uniform across businesses. So that may be another nuance that we could look at in our analysis. And then finally on the enforcement side, the anti-competitive effects. Is there a way to dig deeper? Is there available data to dig deeper, to identify any particular impacts, that within our anti-trust analysis, using the data we have? Then you’ve got the advocacy side.

So, we’re really looking at targeting our work at markets that have the potential to reduce those barriers for marginalized groups, to then, again, improve participation in our economy and overall improve competitiveness and productivity and innovation and all the benefits that it brings to our entire economy. On compliance and outreach, we’re really looking at targeting organizations that serve equity-seeking entrepreneurs in small and medium sized enterprises.

And we’ve actually started doing this and we found that discussing things like gender, race and diversity implications has the added benefit of actually boosting interest in competition policy overall, and frankly awareness that we even exist as an agency and have a role to play. And then as an employer, as Kat said, we do view, diversity and inclusion as really core to what we do, not only because we need to be representative of the population that we’re serving, but because it helps our analysis, like it enriches our analysis and decision-making, leads to more innovative approaches in how we go about doing our work.

And our work is pretty complex. And the more we can challenge each other, bring diverse perspectives and experience to our analysis, discussions, debates, I truly believe the better informed our decision making can be. So we are putting in a lot of emphasis on, do we have the right mix of skill sets? Do we have the right mix of backgrounds? Are there ways that we can diversify that to enrich our work? And that’s everything from recruitment to how we go about having our discussions, making sure that there are inclusion strategies, so that no voices are left unheard, and views are free to be expressed. So maybe I’ll leave it at that, and happy to discuss any other questions you have.

BANICEVIC:

That’s great. Thanks, Jeanne. Maybe Chris, I’d like to get your perspective. Having been at the OECD, having heard a variety of different agencies speak about this topic. What do you see as the barriers, if you will. You mentioned a bit of skepticism on the idea of bringing in inclusive competition as a consideration. But then I hear Jeanne and Kat talking, and I don’t know that it is really a significant shift in the way that the agencies are doing their work, it’s perhaps maybe another data point to bring into the analysis. Maybe I can throw that question to you and then we can all chime in if you… Kat or Jeanne, if you have any other views on that.

PIKE:

Sure. Yeah, I can see the slight constriction there. I think what I would say is that when we brought the topic to discussion originally, I think it conjured in people’s minds the idea of public interest tests, perhaps some of these cases for an exception to competition law, which have been a feature of the discussion about green antitrust in recent months and years. And I think we consciously took a different approach and tried to think about what you could and should be doing within the existing framework that didn’t require you to turn that upside down. I think those are interesting questions in and of themselves, but I think by putting it within the existing framework and thinking, how can you push that further, and what else are the opportunities?

We manage to come up with ideas that were interesting for agencies, and agencies started to think, well, this is stuff that we could put into practice, if we can just nail down some specifics around what we do with these ideas, but this is not going to entail a rewrite of the rural books sort of thing in order to put it into practice. So I think you can divide it into those different parts in terms of what you look at in terms of making changes in this space.

BANICEVIC:

Okay. And that makes sense. And I guess maybe just, if could pick up on that, is it, to my mind, is it a question of having the right data to enable this type of consideration? And if so, is that another, as you say, data point that we can start to think about collecting, so that it informs our analysis? Or is it, like I said, maybe just stop there. Is that something that we think could help in terms of whether it’s an appropriate data point that can be included in certain cases or not?

PIKE:

Certainly from my perspective, I think what’s becoming clear in some of the projects that the OECD are doing is that it’s not that complicated to collect this data. And this is something that Jeanne and the Canadian Bureau have found in some of their work. I know so that is, it’s not that difficult to get hold of some additional data on here. What that data tells you will obviously depend on the specific case, but the cost in terms of taking a look and getting to the bottom there might not be dramatic in the first instance. So, I think certainly there is a matter of let’s ask those questions and try and explore whether there is an issue in a given market to get into.

PRATT:

Yeah, maybe I’ll add to that, Anita. I agree. I think as competition enforcers, we are within the context of the economy that we operate in and the markets that we’re looking at. And the facts that are relevant to supply, demand, market power, rivalry and effects in any particular case are also potentially relevant when we’re looking at a more nuanced analysis. And many businesses, if there is a meaningful nuance, it may be driving their business to behavior and decision-making. So there’s a lot of cases, particularly maybe in some consumer-driven markets, where businesses see an opportunity to target, or actually are collecting that data because they see it as meaningful in their efforts to compete, to market, to find revenue growth and demand growth.

So in those cases, I think there is data available that we can just look at maybe in a deeper way, slice it differently, look at it more nuanced. In other cases, that might not be the case. Then, we’ll have to evaluate whether there are other reliable data sources that may exist, but we are within our framework, we do have to make sure that we have credible and reliable data, and that we’ll always be at the core of what we do. I think as we’re looking forward to digital markets, and that’s a huge priority for the Canadian Competition Bureau as well.

Big data is everywhere. So, I would suspect that there’s a lot of data that we may be able to leverage in those markets in particular, as we start to look at intelligence gathering, using AI in that capacity. And that may actually help not just looking at the data that’s relevant within a market, but looking at what’s going on within the context of that market.

BATCHELOR:

Perhaps if I jump in as well. And then this might not be what you expect the person with the digital nameplate on say. I completely agree, data is a really important part of this work. But when I was doing work on… I previously came from financial services, and in financial services, there’s been a very big debate about gender diversity on boards or diversity more broadly on boards. And I remember someone saying to me, if you just replace the Henrys with the Henriettas, you can get perfect diversity stats, but you haven’t brought necessarily any diversity of thought. And I think that principle applies when you are looking at data on this subject, whether that’s about, as they say, the date data on that kind of subject, but also on how does a particular anti competitive behavior impact on different groups with different protected characteristics?

There is also an element of getting under the skin of what is that actually telling you, and therefore the outreach, the speaking to the third sector organizations, the qualitative analysis that works alongside that data analysis and the constitutive analysis is really, really important. So I completely agree, that data is important, but it’s got to go alongside, I think, that qualitative piece.

BANICEVIC:

Great. And there are some… you mentioned the financial services. I think there are some studies being done worldwide that talk about diversity and the benefits from a overall performance perspective. There’s one in Canada. It was done the UofT that talked about really the benefits of disrupting group think. And what I thought was interesting maybe to your point, Kat, is that they looked at the benefits of having, I think, it was a couple of female directors. That was a real benefit from a fraud perspective, this was.

But when you had too many, the group think shifted the other way. So I think that that supports what you’re seeing. It’s just, as you say, more of a holistic approach, and with maybe the goal being understanding what diversity brings, but it is still diversity that’s the goal.

BATCHELOR:

I think that was one of the things I actually took away from some of the work that Chris wrote, is actually the opportunity here, actually. When you start understanding how diversity can affect the decision-making of these firms, and then particularly with the digital, as we start regulating the really big platforms, actually, if you can understand that greater diversity brings you greater compliance or greater whistleblowing, for example. That’s really, really important to you as a regulator.

And again, coming back to financial services, I think it’s really interesting that in the UK, the financial regulator has really pushed about questioning actually whether its role should be to actually almost regulate this when it comes to financial institutions, have a role in thinking about whether their boards are diverse enough, very much with the view that actually if they do have diverse boards, then they will make better decisions and they will deliver better products and… to consumers. I think it’s really interesting to about what diversity tells you as a regulator, about the firms you’re regulating, and coming into digital and big tech, which is traditionally probably as un-diverse as investment banking. There’s some really interesting things to learn in parallels.

BANICEVIC:

Great. And I do think, Chris, you had some interesting initial tidbits on your first paper with Estefania, about the angle of compliance and how, I think, from the ICN study database, there aren’t that many. Let’s say that there’s none, but there aren’t as many women who are involved in antitrust offenses, which I thought was an interesting one. And that I think you’re building on that, there’s maybe more work to be done, to your point, Kat, to understand how whistleblowing programs can be designed to encourage really the whistleblowing itself. So what are the components that are important to different people in design, I think, is also something that it’s helpful to understand those, really those interplays of the factors that come into designing, so. But I don’t know, Chris, if you had any other thoughts coming out of that discussion from your end of things, having looked at this more deeply?

PIKE:

Yeah, just to say, yeah, that was coming out of the kind of database of international cartels that the OECD is working on. And, yeah, it’s notable how few, but obviously the kind of the… I guess the number of women on boards, unfortunately, during a lot of that period was pretty small as well. So that was some controlling we did there. But it still looks very low. And so that’s some of the analysis that has been done as part of that OECD project at the moment to try and get a bit further into whether that holds in different data sets and what might be explaining it, as we say, that diversity of thought across the board seems to be a very intuitively a really sensible explanation of that, and certainly there’s some support from other white collar offenses for those sorts of issues. So I think that’s a good lead to follow on.

BANICEVIC:

Right. And I think there’s some work that NASDAQ has done as well, that talks about this concept as well. And to your point, Kat, really throws out the idea of whether or not diversity is beneficial, or should it be a component of regulators’ mandates going forward. Two thoughts, thinking about the challenges to trying to bring this concept of inclusive competition forward. I just wanted to get your thoughts on what really do you see as the challenges. Is there an opportunity from a multi-lateral international perspective for collaboration? Is there still stakeholder really skepticism, and how are we to answer those skeptics that say, well, this is to your point, Chris, may be something that seems a little further field than traditional anti-trust considerations?

PRATT:

Well, maybe I’ll start. I think it’s based on our journey, it is a journey and awareness is key. Well, at our agency, we’re really lucky we have a lot of incredibly intelligent, intellectually curious. They love facts. They love data. They love looking at things in a nuanced way. So, internally, I think we have a very strong foundation in terms of outside stakeholders, I think it is bringing them along our journey to say, this is not revolutionary, this is actually core to what we do and can actually help us impact and have the impacts that are core to our mandate as a competition agency. So, and on the international front, I think it’s been hugely helpful and will continue to be hugely helpful to discuss these issues in forums like the OECD.

The OECD always gives credibility to issues because of the quality of research, because of the quality of the dialogue that they’re having. And seeing the engagement that Chris was talking about from the beginning like, oh, is this anti-trust to, yeah, this is antitrust and this is how we can do it within our frameworks, I think, is hugely important. And for us as agencies, we always learn so much from each other. That helps us leverage the learning; the lessons learned, what worked, what didn’t, what can we adapt to our own frameworks. In my view, we were always really good at cooperating despite maybe different priorities or different frameworks in certain cases, and we find those ways to leverage those learnings in our work.

And I see this as an area where we will continue to do that. And then also just as an employer, where as management in these agencies, we are talking to one another. Like, what are the skillsets that you found to be helpful to add into the mix at your agency? Where are the recruitment opportunities? What’s worked for you to share those ideas, so that we can all benefit from each other’s experiences.

BATCHELOR:

I just second what Jeanne said. A lot of my time at the moment is obviously focused on the activities of the digital platforms and, international engagement on that is key. They are multi-jurisdictional firms. What they do in one jurisdiction, often they do across the world, and you have all different regulatory authorities tackling the same issues and more and more comparing notes on how did you put together your information request, what information was useful to gather, how did you frame your analysis? The calls are so frequent and so… sometimes it almost feels like an extension of your own team. And actually, it strikes me that on this it’s quite similar. Again, they are issues which transcend jurisdictional boundaries and therefore there’s the same opportunity to be having maps in quite perhaps a more systematic way. That constant comparing of notes.

We’ve done an outreach program here. This is what it’s told us. We’ve been focusing over here on remedy design. We’ll share what we’ve learned from that. I just think there’s huge value in that. We’d be really up for it, and really keen to do more of it.

BANICEVIC:

That’s great. I wanted to also explore a bit whether there are any other areas, maybe from [inaudible 00:37:07] perspective that lend themselves to inclusive competition considerations. I think we’ve talked about selection of cases and prioritization given that all the agencies really face a decision of where to prioritize their resources. There’s that. But I also wondered if, Jeanne, maybe to your point, about understanding how consumers view markets, but also how maybe consumers view maybe even advertising and extending it to consumer protection cases. I think they’re called consumer protection cases outside Canada.

It’s still part of the competition act, but advertising and the like. I wondered if there is an area or if you have any thoughts where it’s almost a easier way to think about or an easier sell, if you will, to bring the concept of inclusive competition forward. Let me just stop there and see if you have any thoughts on that.

BATCHELOR:

Shall I jump in. Probably unsurprisingly, I’ll talk about digital. And I think digital is a challenge, but also a huge opportunity. So, in digital markets, we know that, for example, in online advertising, that there is more personalization and more tailoring than perhaps we’ve ever seen in the economy before. And therefore there’s real prospect of harm, and exploiting people with particular protected characteristics, mental health concerns, whatever it is. So there’s evidently real challenge and real, as I say, real prospect of harm, but also there’s real opportunity. And I think, I particularly think about two buckets. One, you can use that tailoring the other way. So actually there’s an opportunity for firms to tailor their services to actually enable people with protected characteristics to better access services.

And I think you do see some examples of that, but I think particularly in the UK and some of what we’ve seen in the press recently, there’s a huge way to go. But also that means there’s data for us as agencies. If firms are routinely tailoring their services in that way, then actually when we come to design remedies, we should be able to access and use that same data and analytical techniques to focus and improve our remedy design to ensure that the remedies are effective for all different groups of consumers. So I think there are significant concerns, but also there should be significant opportunities in digital. And you may be aware, but at the CMA we’ve recently launched a PayrollHUB, which is a team of data scientists and behavioral scientists very much focused on understanding how firms are using algorithms and choice architecture to steer consumer decision-making.

And again, that’s just our way of starting to think about, well, this is what the firms are doing. How can we utilize those kind of skills and analysis techniques as a regulator? And I think that hopefully should give us much more capability when it comes to taking this kind of activity forward.

PRATT:

Yeah, and I would say we’re trying to learn from the CMA. It’s a strategic priority for the Canadian Competition Bureau to look at ways to improve our intelligence gathering efforts, to look at data in ways that are beyond evaluation of a case, evaluation of effects to proactively identify opportunities for us to have more of an impact on our economy to do our jobs next level. So, we’re setting up a digital unit. We are working very closely with all our international counterparts to learn from that, to figure out how we can leverage that data. I would say on in terms of strategic priority sectors, I’m not sure. We’re certainly asking those questions and we’re certainly looking at it in a more nuanced way.

But a lot of the consumer focused markets like pharma, those are ones that I think they’ve been a priority and it’s really just, is there a way to bring our analysis and bring our prioritization next level? And I can’t really… there’s some really good research out there. There’s an IMF paper, the work of the OECD, which does identify sectors where we may want to be asking more nuanced questions, and I think that’s also informing the way we’re looking at it in terms of where should we be asking the questions, where should we be maybe delving a little deeper.

BANICEVIC:

Great. So, Chris, I know you recently contributed a paper to CPI that, as you said at the beginning, I think, takes things to a different level in terms of thinking. Maybe you can give us a bit of an overview of your paper, but also, the OECD projects, you mentioned that a couple that are underway. And maybe Jeanne, you can fill in some of the Bureau’s involvement rather in those projects that have been, to some degree, funded and the work that’s being done there to further the analysis, if you will, in this area.

PIKE:

Sure. Thanks, Anita. Yeah. If I could just give you a brief overview of the paper and then I’ll move on to the OECD stuff. Certainly, the paper is an attempt to go a little, as you say, further than some of the suggestions that we put down in some of the initial OECD work, and just to push the envelope just a little bit further and think about an elaboration of some of these ideas. The starting point with the paper was really this idea that if you think about inclusive competition as an attempt to reconcile competition and equality goals, that to me reminded me of the John Rawls’ efforts to reconcile liberalism and equality, and how he developed these principles of justice to help offer one answer to how you might do that.

Certainly an answer that I find quite attractive. And so in the paper, I run through the different principles of justice that he put down, and I’ve try and draw across those into how we might interpret those within an antitrust or competition policy sphere. And I suppose one of the big things that I get to within that is that to me, and this goes back to some OECD work and indeed to the UK, this idea that what you might need to go beyond… So, to go beyond what you have at the moment in terms of the framework and to think about inclusivity beyond that might be some sort of secondary objective.

Now this is something in the UK we’ve gotten… certainly some of the regulators have got in terms of having secondary competition objectives, and that we hear this is very helpful in terms of bringing a cohesive cross government approach to solving competition problems, because you reduce the scope for conflict of different policy aspects. And so one of the first suggestions I make in the paper, I think, would be really interesting is if competition policy or competition law were to have some sort of secondary inclusivity objective, which would be subsidiary in the sense that it would recognize that we’ve got a consumer welfare standard or whatever we want to call the consumer welfare standard as our kind of primary concern.

But we have quite a lot of room for maneuver often in some of our choices below that, which we might want to be very clear about how they’re being governed. And so I think a secondary inclusivity objective would be something that would hardwire in some of the proposals and changes that we’ve heard as suggestions, both in terms of prioritization, the way we do our analysis, the way we define markets and these sort of aspects. And then I suppose at the end, I’ve put in some sort of, I don’t know, stretch possibilities. Certainly we are having a bit of a debate at the moment about the idea of where does the rebuttable presumption lie in different types of markets, potential competition cases and so forth.

And so one of the ideas I floated there was the idea that certain markets have got quite a lot of potential to have a large inclusivity cost, if they’re not working very well, because the costs are largely felt by marginalized communities, while the benefits of greater efficiency aren’t always on the producer side, can often be for those who are less marginalized. And so you might have some markets where it might make sense to have a different rebuttable presumption. Or indeed, you might say, well, in general, a lack of enforcement, if we think about that type one, type two kind of era cost, is it that we’ve got certain communities that are tending to bear the burden of some of the cost on one of those sides?

And so is that a reason to think about drawing a different rebuttable presumption? And so those, I think, are bits at the edge of the framework where you could think about elaborating what we have. Obviously more recently, I’ve been thinking a lot more about private enforcement, and I think there, you can also think in terms of class actions, the fact that whether you want them to be opt in, in a way to draw, make sure that you’re including, people within actions, rather than making it difficult for them to access those things. And so I think that there’s an interesting set of issues there as well. But if I just say a bit about the OECD projects to wrap up. It’s worth having a look at the site. I think we’ve got the recording of the workshop that happened in February.

We’ve got seven presentations there from the different people who are doing the research. We’ve got a number of projects looking into the cartel and the whistleblower question, whether you’re more likely to have cartels formed, if you’ve got a greater diversity of decision-makers involved, using different data sets, different sort of experimental techniques and so forth. You’ve got some really interesting projects about surveys and the different results that you can get by asking different questions in surveys. You’ve got one group that are looking at simulations of competitive effects and HHIs, and looking at how that could make the difference where taking the gender lens could make a real difference to some of their conclusions that you get to within a case.

And then we’ve also got obviously this prioritization point, which Bill Kovacic is taking a look at. And even a discussion of this public interest angle from a group in South Africa who are relaying some of the learning that they’ve had from having a kind of a public interest test that is focused on, historically, disadvantaged persons and the difference that that makes, and just see how that feeds into the debate about what the toolkit should look like. Because certainly we’re hoping, or the OECD is hoping, I should say, from that to be developing lessons that can inform a toolkit that would provide practical advice to agencies around the OECD and the beyond on what they could be doing on this and to give a bit of a menu of options. So that’s a nutshell of what the OECD are up to on this, I believe.

PRATT:

Maybe just on the Canadian side, like we obviously, especially, I think it’s really crystallized for us looking at coming out of the pandemic and Government of Canada priorities to put inclusive growth at the center of our recovery efforts. And so it’s kind of, I guess for lack of a better term, an opportunity to double down, I think, as an agency, because with every crisis, there comes an opportunity. We see a huge opportunity here. But the opportunity is from looking at our work holistically from soup to nuts, learning, investing in that research, learning from our international counterparts. And then another huge part is learning from the amazing people we have within the organization who are incredibly intellectually curious, who are experts in their analysis, to really leverage them to find, are there additional questions that we should be asking?

Are there additional data sources that you have seen that we should be looking at in a more nuanced way? Are there new data sets that we should be looking at in our work? And I think that’s where we’re at is just soup to nuts, looking at what are the ways that we can double down on this, use the tools that we have within the framework we have to leverage the strength of the organization, to leverage the strength of evidence, to then hopefully impact what all of us as competition agencies want to do, which is contribute to better recovery, better productivity, better competition, better innovation coming out of this. And you look at those marginalized groups, they represent a disproportionate opportunity in the recovery. If we can leverage and get their participation up, remove the barriers to their participation, so we can maximize their participation in the overall economy and improve our GDP in Canada.

BANICEVIC:

That’s great. And Kat, did you want to add anything there in terms of your perspective of where we’re heading next steps, even from your end? I know it’s early days at the CMA.

BATCHELOR:

I was just going to say, how could you not sign up to the business case that Jeanne just set out? The case is so compelling. And I think we’re in a really similar place as an agency. I think we see a clear case for doubling down, as Jeanne put it, and really thinking about, well, yeah, how can we ensure we are doing the utmost in this area to be ourselves and more inclusive agency and to promote more inclusive outcomes in the work that we do.

In terms of next steps, I think I’d say more of the same and go further. So I think the point that you made earlier in the discussion around international joining up, I think there’s a huge amount we can learn from each other. I’m really keen that we keep this debate live. I think the work the OECD is doing in the… the different work streams will be really, really important contribution to this subject area. And I’m keen to ensure that we’re contributing and doing as much as we can, as I say, to learn from each other, and very selfishly that will help us in our work as we establish the DMU.

BANICEVIC:

And Chris, any thoughts from you in terms of whether we can expect another paper, or are you getting any take up on your stretch goals for many other stakeholders in the area?

PIKE:

There seems to be a lot of interest in the topic. The buzz on this has continued to grow as time has gone by really. I think from all private practitioners, from agencies and so forth. And so I think there’s certainly continued interest in the topic. I guess at the moment, in a few countries, we’re seeing debates about what the direction of antitrust going to be. So I think it’s good to have these different options on the table and to bring this inclusivity question into some of that debate. Where that goes, we’ll wait and see, but I think it’s got a place in that, so.

BANICEVIC:

Certainly seeing, I think Commissioner Slaughter had a significant amount of input into the really the framing of the issue from her perspective in a series of tweets, which made me even sign up for Twitter, but I think is contributing to the discussion, as you say, and another inflection point, if you will, on what the different perspectives there are. I want to just throw it open to Jeanne or Kat for any final comments at all. I think we’re close to over our time here, but just wanted to, if not, thank you all for participating. But just, again, final thoughts on where we would like to head, or whether how you are seeing things from your agency’s perspective, aside from goals we’ve talked about in terms of things that we can all be doing from my discussion perspective going forward.

PRATT:

Well, I would just, again, double down on what Kat said, which is I think it’s really important for us to learn from each other to unlock the potential of this issue. I think you’ve seen probably from all of us what started out as a question has been confirmatory that we need to continue. And that there are many areas of our work where we can have a more significant impact by looking at things in a more nuanced way without divorcing ourselves from this is not revolutionary. This is actually core to what we do. And, as we look forward to where the economy is going, I think, and where society is going, at least in Canada, I think it’s a reflection, as always, of the context that we’re in and the markets that we regulate and our core mandate. And I think you’ll continue to see the Canadian Competition Bureau see huge upside to learning from others, continuing the debate, continuing the research in this area, so we can be more informed.

BANICEVIC:

And cat, any final thoughts?

BATCHELOR:

Not really. Just I’m very excited to have, as I say, the luxury of a blank sheet of paper, and to be able to think about this from the ground up, to build it from the ground up, to sort of set up… We’ve got a huge way to grow in terms of building the DMU in terms of recruitment, in terms of setting up the legislation, in terms of then setting up our governance, the institution; the institutional arrangements as a whole, and therefore at every single turn, at every single decision-making point, we have an opportunity to say, well, how do we build this in the most inclusive way possible?

And that’s key in the tech sector, which is built around promoting greater competition, great to dynamism, greater innovation. That all comes, stems from diversity of perspectives and thought and challenge. So, it’s a real opportunity for us. And as Jeanne said, just I can’t emphasize enough, keen to learn.

BANICEVIC:

Great. Well, thank you everyone. Thank you for your time and thank you to CPI for organizing and providing the platform for the Chronicle and also for this discussion. I think that’s a very interesting discussion from my end of things, and I look forward to continuing and hearing the fruits of this discussion and further future discussions as we go forward. Thank you everybody. Thanks again for your time.

PRATT:

Thank you.

BATCHELOR:

Thank you very much.

PIKE:

Thank you.