Mergers qualify for review under the UK rules if they meet a test relating to the turnover of the target or, alternatively, a 'share of supply' test. The Competition and Markets Authority (CMA) has the power to carry out an initial Phase I investigation, and has a duty to refer any qualifying transaction for a detailed Phase II investigation where it believes that the merger could give rise to a substantial lessening of competition. Phase I decision-making is undertaken by a senior director of mergers or another senior CMA official, while Phase II decision-making is undertaken by an independent panel drawn from a pool of senior experts in a variety of fields.
Remedy undertakings in lieu of a Phase II reference may be accepted by the CMA. The CMA's in-depth Phase II investigation may lead to a prohibition decision, a decision that the transaction should be allowed to proceed subject to undertakings or an unconditional clearance.
Notification under the UK system of merger control is 'voluntary' in the sense that there is no obligation under the Enterprise Act 2002 (EA) to apply for CMA clearance before completing a transaction. The CMA may, however, become aware of the transaction through its market intelligence functions (including through the receipt of complaints) and impose interim orders preventing or unwinding integration of the two enterprises pending its review. There is a risk that it may then refer the transaction for a Phase II investigation, which could ultimately result in an order for divestment.
Where the merger raises a defined public interest consideration, the UK system allows the relevant Secretary of State to intervene in relation to mergers. Currently, public interest considerations are limited to quality and plurality in the media, accurate presentation of news and free expression in newspaper mergers, maintenance of stability in the UK financial system and a new ground for public health emergencies.2 In addition, the National Security and Investment Act 2021 (NS&I) regime, which came into force on 4 January 2022, provides for a formal notification process for mergers that may raise national security concerns.
The Competition Appeal Tribunal (CAT) may review decisions made by the CMA or the Secretary of State in connection with a reference, or possible reference, of a merger. An appeal lies, on a point of law only, from a decision of the CAT to the Court of Appeal and requires the leave of either the CAT or the Court of Appeal. The High Court may review decisions made by the Secretary of State under the NS&I regime.
Year in reviewi Workload
The number of Phase I merger decisions made by the CMA in the 2021–2022 financial year (55), was considerably higher than the preceding financial year (38).3
Of these 55 cases, 33 were cleared unconditionally, representing 60 per cent of Phase I merger decisions, which is up from 47 per cent in the preceding year. Ten cases were referred for Phase II review, which is around 18 per cent of cases, and lower than the 24 per cent of cases referred in the preceding year. Undertakings in lieu of a reference (UILs) were accepted in six cases, the same as the preceding year.
A total of eight Phase II decisions were published by the CMA in the 2021–2022 financial year, up from the seven published in the previous year. There were two unconditional clearances, and two clearances were granted subject to divestiture remedies. The CMA prohibited three mergers during this period, an increase from the two cases it prohibited in the preceding year.4 One case was cancelled or abandoned, four less than in the preceding year.
Overall, the CMA intervened (i.e., prohibited or accepted remedies) in a fifth of the cases in the 2021–2022 financial year, which is around five times the rate of intervention from the European Commission over a similar period. The higher intervention rate can be explained by the voluntary nature of the UK merger control regime, which means that parties may elect not to notify transactions that do not give rise to significant competition issues.ii Interim measures
The CMA has powers to impose interim measures to freeze or unwind integration and prevent pre-emptive action, including in relation to anticipated mergers at Phase I (see Section III.vi). This ensures that, while notification is voluntary in the United Kingdom, the CMA is able to prevent action being taken that would result in irreversible damage to competition. The CMA imposed initial enforcement orders (IEOs) in 18 Phase I cases in the 2021–2022 financial year. The CMA published updated guidance on the use of interim measures in merger investigations and the initial enforcement template in December 2021.5
The CMA imposed four penalties in respect of alleged breaches of IEOs in the 2021–2022 financial year. In August 2021, the CMA imposed a fine of £350,000 on ION Investment Group in respect of its completed acquisition of Broadway Technology. The CMA found that the companies had breached the IEO by responding jointly to a customer request and by failing to provide the CMA with the requisite information for compliance-monitoring purposes. In October 2021 and February 2022, the CMA imposed two separate fines on Meta, totalling £52 million, for alleged breaches of the IEO that was imposed in respect of its completed acquisition of GIPHY. The CMA found that Meta had limited the scope of updates provided to the CMA and had failed to alert the authority in advance of key staff leaving the company. In February 2022, the CMA imposed a collective fine of £4.7 million on JD Sports and Footasylum on the basis that the two companies had shared competitively sensitive information and had failed to inform the CMA.iii Parallel reviews
Since the expiry of the Brexit transition period on 31 December 2020, merging parties in relevant transactions have faced the prospect of parallel merger control reviews by the CMA and the European Commission (EC). Approximately 20 per cent of the mergers that the CMA examined in 2021 also faced a parallel review by the EC. The initial experience under this new regime has seen the authorities diverge on several occasions. For example, Meta/Kustomer was cleared unconditionally at Phase I by the CMA, but cleared subject to remedies by the EC following a Phase II review. Cargotec/Konecranes was cleared by the EC at Phase II, subject to remedies, while the CMA decided to reject the same remedies package and prohibit the transaction (the parties abandoned the transaction before the CMA's order was issued). Veolia/Suez was cleared conditionally at Phase I by the EC, and referred to an in-depth Phase II review by the CMA (the CMA's review is ongoing at the time of writing). The CMA and EC both conditionally cleared S&P/IHS Markit at Phase I but on the basis of different divestment packages due to a divergence in the theories of harm pursued. Points of difference have also taken the form of national security concerns (NVIDIA/Arm), focus on coordinated effects (SK Hynix/Intel) and approach to vertical relationships (Alexion/AstraZeneca).iv Public interest interventions and the NS&I regime
Where a merger raises a defined public interest consideration, the EA allows the relevant Secretary of State to intervene in relation to mergers. To do so, the Secretary of State will issue a public interest intervention notice prior to the CMA issuing its decision on reference.
Four mergers were subject to intervention on national security grounds under the EA in 2021–2022: NVIDIA/Arm (abandoned by the parties); Parker-Hannifin Corporation/Meggitt plc; Ultra Electronics Holdings plc/Cobham Ultra Acquisitions Limited; and Perpetuua Group/Taurus International Ltd (the latter three cases were ongoing at the time of writing).
The NS&I regime became operational on 4 January 2022 and replaced the previous national security ground of public interest intervention under the EA with a formal notification process for mergers involving sensitive sectors. The regime permits the UK government to scrutinise and potentially prohibit, unwind or impose conditions on transactions on the basis of national security concerns. The regime is not limited to investment by foreign investors (although the UK government expects that will be its focus), nor is it restricted to investments in UK companies or assets. In contrast to many other foreign investment screening regimes, the NS&I regime catches investments in both UK companies and non-UK companies, provided that the latter carry on activities in the UK or otherwise supply goods or services to people in the UK. Mandatory notifications are required for qualifying transactions in 17 sensitive sectors. Voluntary notifications may be made in respect of non-qualifying transactions in those sectors and in respect of certain transactions outside of those sectors. The UK government also has powers to 'call in' a non-notified transaction for review where there is a reasonable suspicion that it may give rise to a risk to national security.
The merger control regimei Threshold issues
Under the UK system, a 'relevant merger situation' (i.e., a transaction potentially qualifying for review) occurs when two or more enterprises have ceased to be distinct. This can occur either through common ownership or common control. Common ownership involves the acquisition of an enterprise so that two previously distinct enterprises become one. Common control involves the acquisition of at least one of the following: de jure or legal control (a controlling interest); de facto control (control of commercial policy); or material influence (the ability to make or influence commercial policy).
The concept of material influence has been drawn widely by the UK competition authorities. For example, the breadth of the concept can be seen in JCDecaux/Concourse where the Office of Fair Trading (OFT) found that, even in the absence of an equity stake, material influence had been acquired by virtue of an option to appoint two out of three board members and the ability to restrict the target's capability for expansion. More recently, the CMA established jurisdiction over Amazon's acquisition of a 16 per cent interest in Deliveroo, finding material influence on the basis of certain factors relating to Amazon's specific status and board representation.6
A merger situation will qualify for review if it meets the turnover test or the share of supply test. Where the UK turnover of the target exceeds £70 million, the turnover test will be satisfied. The share of supply test will be satisfied where the merger creates an enlarged business supplying 25 per cent or more of goods or services of any reasonable description or enhances a pre-existing share of supply of 25 per cent or more. The share of supply test has been interpreted very broadly by the CMA in recent years.7 The UK government intends to increase the turnover threshold to account for inflation and introduce a new jurisdictional threshold to broaden the reach of the UK merger control regime (see Section V).
If the CMA believes that it is or may be the case that the merger has resulted or may be expected to result in a substantial lessening of competition in a UK market, then it will refer the merger for a Phase II investigation. In general, a completed merger will no longer qualify for a Phase II reference four months after the date of its implementation. Time will not begin to run, however, until the 'material facts' of the merger (i.e., the names of the parties, nature of the transaction and completion date) have been made public or are given to the CMA (if neither occurs prior to completion). Time will not run where UILs are under negotiation, or where the parties are yet to comply with an information request from the CMA. The four-month period may also be extended by agreement between the CMA and the merging enterprises, but for no more than 20 days.ii Substantive test
In its assessment of mergers, the CMA considers whether the transaction may be expected to give rise to a substantial lessening of competition (SLC). At Phase I, a reference must be made if it is or may be the case that a merger may give rise to an SLC (known as the 'realistic prospect' threshold), while at Phase II a 'balance of probabilities' threshold applies.8 As a result, it is possible for mergers to be referred to Phase II and subsequently be cleared unconditionally, although a significant proportion of recent Phase II cases have been abandoned, blocked or subject to remedies.
In March 2021, the CMA adopted new substantive assessment guidelines, which reflect changes in practice since the last edition was published in 2010.9 The guidelines show that the CMA is now more open to working within uncertainty, including using flexible market definitions and focusing more on dynamic competition, including potential competition and likely future market behaviour. The guidelines also take into account the global economic transition towards tech businesses (e.g., by making provision for two-sided markets and innovation).iii Counterfactuals
The CMA applies different approaches at Phase I and Phase II to assessing the merger counterfactual. At Phase I, the transaction is generally measured against the prevailing conditions of competition unless it is unrealistic to do so or there is a realistic counterfactual that is more competitive than the pre-merger conditions of competition. At Phase II, the CMA will measure the transaction against the 'most likely scenario'.
The most notable situation where the CMA may use a counterfactual different to the prevailing conditions of competition is in a failing firm scenario. In practice, it is often difficult to argue for its application, especially at Phase I. However, the CMA relied upon the failing firm scenario in March 2022 to clear Freshways/Medina at Phase I. The parties both supplied fresh processed liquid milk, cream and other dairy and grocery products in the UK. The CMA concluded that the relevant counterfactual was one in which, absent the merger, it was inevitable that Medina would have exited the markets in which it was active and there would not have been an alternative, less anticompetitive purchaser for Medina or its assets than Freshways.iv The notification procedure
An application for clearance is made using the formal merger notice. The initial period within which the CMA must make a decision on whether to make a reference is 40 working days from the first working day after the CMA confirms to the parties that the merger notice is complete. The initial 40-working-day period may be extended where the parties have failed to comply with the requirements of a formal information request under Section 109 of the EA or where the Secretary of State has served a public interest intervention notice.
The CMA merger notice requires a large amount of information. The CMA therefore strongly encourages parties to make contact in advance of notification to seek advice on their submission, not only to ensure that the notification is complete, but also to lessen the risk of burdensome information requests post-notification. Pre-notification discussions also help the CMA to determine any jurisdictional issues and whether a case is likely to give rise to any substantive issues that might trigger its duty to refer. The CMA aims to start the statutory clock within 20 working days (on average across all cases) of submission of a substantially complete draft merger notice.
It is possible for the parties to request that the CMA 'fast-tracks' a merger reference where there is evidence that an in-depth review is likely to be required. This option may be attractive to parties in cases where a reference appears inevitable, as it allows for Phase I of the review process to be truncated. The UK government intends to introduce new reforms that will enhance and streamline the 'fast track' procedure (see Section V).
The CMA levies substantial filing fees in respect of the mergers it reviews, with fees of between £40,000 and £160,000, depending on the turnover of the target business.
In December 2020, the CMA published updated procedural guidance, which reflects changes in the CMA's practice in recent years and the effects on procedure of the UK's departure from the EU, and attempts to improve the efficiency of the merger review procedure. The procedural guidance document was updated again in January 2022 to take account of the entry into force of the NS&I regime, including a section explaining how the CMA and the government's Investment Security Unit will work together on transactions.10v Informal advice
Where there is evidence of a good-faith intention to proceed and there is a genuine competition issue, prior to submitting a merger notice or initiating pre-notification discussions, it may be possible to obtain informal advice from the CMA as to whether it is likely to refer the merger for a Phase II investigation. There is no standard timetable for the provision of informal advice, but where it is intended that the advice will be given following the conclusion of a meeting, the CMA will endeavour to schedule that meeting within 10 working days of receipt of the original application. The resulting advice is confidential and does not bind the CMA.vi Interim measures
The CMA has powers to impose interim measures to freeze or unwind integration and prevent pre-emptive action. Financial penalties may be imposed for breaches of such measures (capped at 5 per cent of the aggregate group worldwide turnover). If there are relatively high risks of pre-emptive action or concerns about compliance with the interim order, the CMA also has the power to require a monitoring trustee to be appointed to ensure compliance with the interim orders.
The CMA guidance on the use of interim measures sets out: the circumstances in which measures will typically be imposed; the form that the measures will typically take; the type of derogations that the CMA is likely to grant; and the timing for their implementation.11 The CMA will normally make an order where it has reasonable grounds to suspect that two or more enterprises have ceased to be distinct (i.e., in respect of completed mergers) and will normally do so almost immediately. Given that the risk of pre-emptive action is generally much lower in relation to anticipated mergers, the CMA has noted that it would typically engage with parties before making an order in those circumstances.
The CMA has stated that it would generally not expect to impose an order limiting the parties' ability to complete an anticipated merger unless it had strong reasons to believe that completion will occur prior to the end of Phase I and the act of completion itself might amount to pre-emptive action that would be difficult or costly to reverse (e.g., where the act of completion would automatically lead to the loss of key staff or management capability for the acquired business). The CMA may also consider creating a tailored interim order in cases where this is likely to optimise procedural efficiency and avoid unnecessary disruption to the merging parties' businesses. Therefore, absent exceptional circumstances, it is expected that parties will still be able to complete transactions prior to CMA clearance.
The CMA is willing to grant derogations from interim orders. The CMA advises parties to raise derogation requests as early in the process as possible, preferably in a single comprehensive request. In November 2020, the CAT dismissed an appeal by Facebook against the CMA's refusal to grant certain derogations from an IEO imposed in respect of its acquisition of GIPHY. In dismissing the appeal, the CAT noted that a corollary of the voluntary nature of the regime is that the CMA is given wide powers to suspend the integration of merging companies and it is for merging parties to satisfy the CMA that the relaxation of any interim measures imposed by the CMA is justified.12 The CAT's judgment was subsequently upheld by the Court of Appeal.
The CMA will seek to release merging parties from some or all of the obligations incumbent in an interim order as early as is appropriate in the circumstances of the case, including for parts of the business about which the CMA is no longer concerned. The CMA may also release interim orders following a state of play meeting if it is decided that the case will be cleared.vii Exceptions to the duty to refer
The CMA has a statutory duty to refer a relevant merger situation for a Phase II investigation where it believes that it is or may be the case that a merger has resulted or may be expected to result in a substantial lessening of competition in a UK market. The CMA has published guidance on the statutory exceptions that apply to the duty to refer potentially problematic mergers to a Phase II investigation, and separate guidance on remedies.13
The remedies guidance sets out the criteria for accepting undertakings that may be offered by the merging parties in lieu of a reference. The objective of these undertakings is to ensure that competition following implementation of the remedy is as effective as pre-merger competition. To discharge the CMA's duty to refer, any undertakings offered by the parties should be clear cut and capable of ready implementation. 'Clear cut' is stated in the remedies guidance to mean that there are no material doubts about the overall effectiveness of the remedy and that it achievable in the constraints of the Phase I timetable. It is most common for undertakings to relate to the sale of a part of the merged assets; the CMA has stated a preference for structural remedies and is generally reluctant to accept behavioural remedies. The CMA has nonetheless in the past accepted a number of 'quasi-structural' remedies with behavioural features.14 It is becoming increasingly common for the CMA to require an 'upfront buyer', in other words, for a buyer of the divestment assets to be identified and approved by the CMA before clearance is granted.
The merging parties have five working days from the issuance of a substantial lessening of competition decision (SLC decision) to offer undertakings to the CMA, although they may offer them in advance should they wish to do so. The CMA then has until the 10th working day after the SLC decision to decide whether the offered undertakings might, in principle, be acceptable as a suitable remedy to the substantial lessening of competition. If the CMA decides the offer might, in principle, be acceptable, a period of negotiation and third-party consultation follows. The CMA is required to decide formally whether to accept the offered undertakings, or a modified form of them, within 50 working days of providing the parties with the SLC decision, subject to an extension of up to 40 working days if there are special reasons for doing so.
The CMA's duty to refer may also be discharged in other circumstances, namely in respect of small markets (de minimis mergers), mergers where there are sufficient efficiencies to offset any competition concerns and merger arrangements that are insufficiently advanced. In relation to de minimis mergers, the guidance states that, for markets with an aggregate turnover exceeding £15 million, the benefits of an in-depth Phase II investigation may be expected to outweigh the costs. However, for markets with an aggregate turnover of less than £5 million, the CMA will generally not consider a reference to be cost-effective or justified provided that there is, in principle, no clear-cut UIL available (though this is not to be considered a 'safe harbour'). For markets with an aggregate turnover of between £5 million and £15 million, the CMA will consider whether the expected customer harm resulting from the merger is materially greater than the average public cost of a Phase II reference. The CMA's general policy is also not to apply the de minimis exception where clear-cut UILs are available. The CMA applied the de minimis exception in one case (Turnitin/Ouriginal ) in the 2021–2022 financial year.
The UK government intends to introduce a small merger safe harbour, exempting mergers from review where each party's UK turnover is less than £10 million (see Section V).viii Phase II investigations
Upon the making of a Phase II reference, there are a number of consequences for the transaction – some arising automatically, some relevant only if invoked by the CMA. When a reference is made in relation to a merger that has not yet been completed, the EA automatically prohibits the parties from acquiring interests in each other's shares until such time as the Phase II inquiry is finally determined. This restriction can be lifted only with the CMA's consent.
In relation to completed mergers, from the point of reference, the EA prohibits any further integration of the businesses or any transfer of ownership or control of businesses to which the reference relates (although in practice, the CMA is likely to have imposed an interim order at Phase I in any event).
Unless the CMA releases or replaces an interim order made during Phase I, it will continue in force for the duration of the Phase II inquiry. If an interim order was not made at Phase I or if it is necessary to supplement the measures previously put in place at Phase I, the CMA may impose a new order or accept interim undertakings from the parties.
The CMA is obliged to publish a report, setting out its reasoned decisions, within a statutory maximum of 24 weeks (extendible in special cases for a period of up to eight weeks). The CMA has a statutory period of 12 weeks (which may be extended by up to six weeks) following the Phase II review within which to implement any remedies offered by the parties. The UK government intends to introduce a more flexible commitments procedure to allow the CMA and the merging parties to resolve a merger investigation at any stage of the Phase II process (see Section V).ix Appeals
Any party aggrieved by a decision of the CMA (including a decision not to refer a merger for a Phase II investigation) or the Secretary of State may apply to the CAT for a review of that decision. Appeals against merger decisions must be lodged within four weeks of the date the applicant was notified of the disputed decision or the date of publication, if earlier. Lodging an appeal does not have a suspensory effect on the decision to which the appeal relates. In determining an application for review, the CAT is statutorily bound to apply the same principles as would be applied by the High Court on an application for judicial review.
The High Court may judicially review decisions made by the Secretary of State under the NS&I regime.
Other strategic considerationsi Whether to notify
Given that notification under the UK system is voluntary, the question of whether clearance should be sought from the CMA in a particular case is one for the parties – and, in particular, the purchaser – to consider. This is essentially a question of what level of commercial risk is acceptable.
Where the parties elect not to notify a transaction, the CMA may still become aware of it as a result of its own market intelligence functions, including through the receipt of complaints. The CMA has a dedicated Mergers Intelligence Committee responsible for monitoring non-notified merger activity and liaising with other competition authorities. The CMA's merger intelligence guidance explains when merging companies, that do not propose to notify their transaction, should submit a briefing note to the CMA.15 When deciding whether to call in a non-notified merger, the CMA has powers to request information from the parties and will also accept submissions from the parties on jurisdictional, de minimis and substantive issues. The CMA is willing to give an informal indication that it does not at that point in time intend to call in a merger.
The fact that a merger has been completed does not prevent the CMA from investigating and referring it for a Phase II investigation or accepting UILs. While the substantive assessment of anticipated and completed mergers ought to be identical, the CMA can be expected to impose IEOs while it considers a completed merger, which can be highly burdensome for the merging parties. In addition to ordering the parties to stop any integration that might constitute pre-emptive action, the CMA may also require the parties to unwind any integration steps that have already taken place.
An additional risk to bear in mind is that the initial period for a Phase I investigation may be reduced to less than 40 working days if the parties elect not to notify a completed merger. The CMA must comply with the four-month statutory deadline for a reference under the EA, which will start to run when the 'material facts' of the merger have been made public or are given to the CMA. If the CMA's timetable is compressed in this manner, it may mean that it has insufficient time to obtain evidence that would support a Phase I clearance, without the need for a Phase II investigation.ii Interaction with the European Union
The UK left the EU on 31 January 2020 following the results of the 2016 referendum. Pursuant to the UK–EU Withdrawal Agreement, the UK was treated for most purposes as if it were still an EU Member State until 31 December 2020. Since that date, the one-stop-shop principle no longer applies with respect to the UK, meaning that businesses may need to submit parallel notifications in the UK and EU to obtain clearance for a deal.iii Cross-border cooperation
Since the expiry of the Brexit transition period on 31 December 2020, the CMA is no longer a member of the European Competition Network. Nevertheless, the EU–UK Trade and Cooperation Agreement provides a basis for cooperation on competition law matters, including the option to enter into separate agreements on cooperation and coordination.
The CMA also continues to participate in the International Competition Network, an informal network that seeks to develop best practice among competition agencies around the world. The CMA is also party to the Multilateral Mutual Assistance and Cooperation Framework with the competition authorities in the United States, Australia, Canada and New Zealand, which is intended to improve cooperation on investigations.
The CMA's procedural guidance sets out how it interacts with European and international merger regulators on multinational mergers. The UK government intends to introduce reforms to allow the CMA to share information more flexibly with international partners and introduce a more streamlined approach where international competition cooperation arrangements are in place (see Section V).
Outlook and conclusions
The CMA has continued to be an active and interventionist authority over the past year. In its Annual Plan 2022/23, it noted that the share of total staff time as well as the absolute number of staff allocated to mergers work had increased in 2021. The CMA shows no signs of slowing down and has stated its intention to continue pursuing the larger and more complex cases with a global dimension. It has also noted that its new expanded role means that 'it is even more important for [the CMA] to forge strong relationships across the world, and work with partners both closer to home and further afield in order to protect consumers within and outside the UK'.16
In April 2022, the UK government published responses to its July 2021 consultations on reforming competition and consumer policy and introducing a new pro-competition regime for digital markets. The reforms being taken forward are wide-ranging and, when fully developed and implemented, will bring about the most significant changes to the UK competition landscape since 2014. From a merger control perspective, the key reforms set out in relation to reforming competition and consumer policy are as follows:
- the introduction of a new threshold to capture certain vertical and conglomerate mergers and 'killer acquisitions'. The new threshold will apply where the acquirer has: (1) an existing share of supply of goods or services of 33 per cent in the UK or a substantial part of the UK; and (2) UK turnover of at least £350 million. The threshold will also require there to be a 'UK nexus';
- an increase of the target turnover test threshold to £100 million to adjust for inflation;
- the creation of a safe harbour from review for mergers where the UK turnover of each of the merging parties is less than £10 million;
- new measures to enhance and streamline the 'fast track' procedure, including enabling the CMA to make a Phase II reference without the need to consult on the reference or issue a reasoned decision;
- a more flexible commitments procedure to allow the CMA and the merging parties to resolve a merger investigation at any stage of the Phase II process; and
- measures to allow the CMA to share information more flexibly with international partners and introduce a more streamlined approach where international competition cooperation arrangements are in place.
The new pro-competition regime for digital markets also sets out new merger provisions for major technology firms designated as having 'strategic market status'. Those firms will be required to report their most significant merger transactions to the CMA prior to completion.
The government has indicated that it intends to publish draft legislation implementing these reforms but it has not yet provided a time frame for their implementation. The fact that the government only plans to publish draft legislation has been generally understood to mean a bill will not be introduced in the 2022–2023 parliamentary session.