This whole sorry business reveals the rather curious nature of competition law. In many ways it does not look like ‘proper law’ at all. At a time when airline managers are dragged before the courts accused of talking to one another about passing on aviation fuel surcharges to customers, the government is capable of actually arranging a meeting and, with maximum publicity, trying to enforce behaviour that on the face of it is a blatant breach of the rules. ‘Bankers meet secretly to fix the price of mortgage loans’ somehow looks dubious. ‘Government summons bankers to force cut in interest rates’ apparently looks all right. It is not easy to think of a good reason in economics why this should be so.
The obvious argument that the government was operating in the interests of ‘consumers’ by urging a fall in price ignores the fundamental point that banks are intermediaries and that most of the ‘consumers’ of their services are actually savers and lenders. Implicitly the government was publicly forcing the bankers to conspire with each other in order to improve the fortunes of one set of people (financially vulnerable and clearly politically important) at the expense of another (a broader, more numerous group facing costs that are, to a significant extent, hidden). They were not letting competitive forces determine the winners and losers from underlying changes in market conditions.
Competition law seems particularly vulnerable to these ‘public choice’ considerations. In the end it is always about negotiating with officials rather than complying with universal principles of conduct. The present disastrous financial meltdown simply reveals this underlying reality in an unusually stark way. The Lloyds-HBOS merger would have received short shrift only a few months ago, as has widely been remarked. This presents a real dilemma to supporters of market systems. We might take the classic view that competition law is a necessary buttress to the market system. If so, I leave it to professional lawyers to explain how we can prevent the over-mighty executive branch of government (in the UK) from driving a coach and horses through it. Or we might give up on the grounds that the results are as likely to reflect political expediency as economic efficiency. It would be interesting to know what proportion of economists still hold to the classic position and what proportion think that, with a free trade policy and a clear rule that restrictive agreements are unenforceable in the courts, we could do perfectly well without the whole shooting match.