“The OFT is a watchdog, a servant of the public. Our motto is ‘make markets work well for consumers’ and to do this we needed to change the way we dealt with things and to look at cases with a greater perspective,” says McHenry, who seems to embody a model of public service rarely heard of any more in modern regulators. “The office deals with almost all aspects of the British economy. If markets do not work well, the consumers pay over the odds.”
All change at the OFT
McHenry had little chance to rest on his laurels when he was appointed to the role after a recommendation from a former colleague. The OFT had been strongly criticised in a report by the National Audit Office in November 2005, which said that the body needed to “improve further its management of investigations so that they are quicker, more transparent and more consistent in quality”. The OFT kicked off a substantial overhaul of its structure.
The revamped OFT is a very different beast to its former incarnations. The front-facing office deals with all complaints and cases as they come in, ramping up its capability to deal with a greater number of issues and cutting down the time spent on excessively complex investigations.
Its legal function followed suit in October last year when McHenry disbanded the in-house ‘legal shop’ and sent lawyers into the OFT’s different departments of mergers, cartels, services, consumer, infrastructure, market studies and advisory policy.
“It is exciting to be working for an independent department which has an enormous range of responsibilities — and new things are being established all the time,” he says. “The OFT now has more responsibility. There is a greater appetite in both the public and the business sectors for an effective and active competition authority.”
A history at the Bar
McHenry has not always been a public-sector lawyer. He started his career as a barrister and completed a hat-trick of pupillages at 12 Kings Bench Walk,
“Like anyone who comes from the Bar I had to learn to be a solicitor,” he says. “The difference is you are not working for a client, you are working for the public interest.”
Before coming to the OFT McHenry fielded a wide range of cases, from the public enquiry on the Zeebrugge ferry disaster in 1987 to being the solicitor to the child abuse tribunal in
Taking on the OFT, however, has been his most challenging role to date. As a body it has seen a dramatic expansion of its powers under the Labour Government due to two competition-focused statutes. As such, the OFT’s power, influence and proximity to controversy has greatly expanded.
McHenry says the recent reshuffle has significantly increased the potential for the OFT’s legal team to utilise all the tools at its disposal.
“The OFT is now using the full gamut of its powers. When the Competition Act came in there was a massive recruitment drive and lots of lawyers joined, but not as part of the legal team. This created a lot of tension. My remit was to address this so I created the litigation department and sent the other lawyers out to the relevant groups.”
Unhealthy prices
Change has breathed new life into the OFT with a raft of big cases being taken up in recent months. High-profile work includes a study published last month that concludes that the National Health Service is paying well over the odds for generic drugs and an investigation into price-fixing at some of the
The more forceful stance from the OFT has not gone unnoticed by competition advisers.
“The OFT is pursuing cases with more force and its focus on getting a fair deal for consumers has become more prominent,” says a City competition partner. “Its powers have grown under the Enterprise Act and the whole outfit has got tougher.”
This toughening up of the OFT may have something to do with the 13-strong litigation department. Omar Yaqub, another former barrister, heads up the contentions team that sits directly under McHenry, along with the OFT’s in-house adjudication department. These new branches of the legal department are part of a change in culture McHenry is trying to encourage, not least as part of making the regulator’s procedures more ‘litigation-proof’.
He comments: “I am driving an awareness of litigation. Most of the things we do could potentially end up in
court and it is best if everyone thinks about litigation from day one. The in-house litigation department is like an in-house solicitors’ office. I want people at the OFT to think ‘what would a judge look at?’
“I used to have more direct responsibility. Many lawyers in the old legal team were not initially happy about the move. Since then, however, there has been a cultural shift and I think everyone is now feeling happy. The lawyers of the GLS act as a conscience. We function in exactly the same way that lawyers in business do.”
Competition law is not the only thing to get McHenry going however. After a 25-year stint sitting on the Church of England’s General Synod he decided to answer a longstanding vocation and last year embarked upon a two-year ordination course with a view to taking his vows. But he will not, he says, let that get in the way of his commitments to evangelising at the OFT.
“There are lots of opportunities for people like me. I can wear my priest cap in the evenings and at weekends and be a lawyer here the rest of the time. I am not planning on moving any time soon. I would like it if people looked back at us in the future and thought ‘who were this group of pioneers?’”