Cleary's Nicholas Levy (pictured below) and Paul Gilbert sound a warning as the Government embarks on a bid to overhaul the UK's competition regime

The Government tells us that the UK has a "world-class" competition regime. It is hard to know exactly what this means, but the underlying sentiment is clear: the UK regime is one of the best in the world at protecting and encouraging competition. Now we are told that it needs to get better still. We need a "competition regime for growth". Again, it is difficult to argue with the sentiment. Greater competition should encourage economic growth by reducing prices, improving efficiency and spurring innovation.

But measuring the effectiveness of the regime and deciding where reform is needed is much harder. The Office of Fair Trading (OFT) is clearly right to focus on outcomes and not outputs. Without enforcement, there is no deterrence. But it is not necessarily in the best interests of consumers, or the economy, to dedicate a greater proportion of finite resources to enforcement action when better business education might prevent infringements from occurring in the first place.

So it is clear that in trying to assess the effectiveness of the regime we should not focus solely on the quantity of output, but more on the quality of output and, of course, the efficiency of the processes. Every competition practitioner – and many in the business community – will have views on what can be done to improve efficiency and quality of output and on where the Government should leave well alone. Here are our top five.

1. Let parties have proper access to the people who take the decisions affecting their businesses. Mergers, market investigations and antitrust investigations are all inquisitorial processes. They depend on the decision-maker understanding all sides of a case before reaching a decision. It has taken the OFT 11 years to tell us who the decision-makers are in its Competition Act cases. In mergers, the parties have no way of discussing their transaction, or the undertakings they are prepared to offer, with the person who decides whether to refer it to the Competition Commission. Once before the Commission – whether in a merger case or a market investigation – interaction with the panel of members takes place almost exclusively in formal hearings. It would surely be in the interests of efficiency and quality of output if parties could engage in an ongoing dialogue with the decision-makers.

2. Do not be persuaded that litigation is a way of speeding up Competition Act cases. There is no evidence that a prosecution model would be more efficient than administrative decision-making, or less expensive for anyone involved. Litigation is slow, expensive and unpredictable. It would also require fundamental changes to the leniency regime and early resolution, two of the more successful innovations of the last decade. The OFT's experience in criminal cartel cases and director disqualification orders – both prosecution models – should act as a warning, too.

3. Provide automatic protection for companies that confess cartel activity in Brussels. It makes no sense that a company granted immunity by the European Commission should not automatically benefit from the same protection (including criminal immunity) in the UK. Creating a second race to the door at national level not only increases the costs and burdens on business, it also means that the true whistle-blower is not necessarily the one that benefits from immunity.

4. Do not introduce a mandatory merger regime. A mandatory regime would create hundreds of additional filings that need to be reviewed and processed in cases that raise no competition questions. The Government's consultation suggests that under a mandatory system, the £9m cost of the regime could be recovered by a flat merger fee of around £7,500. This suggests that more than 1,000 cases will need to be reviewed each year, compared with 80 or 90 under the current regime. For businesses, these additional notifications will delay transactions and impose significant additional costs. Some argue that a mandatory regime creates certainty, but it is hard to see how. Businesses that want greater certainty are already able to notify their transactions and receive clearance before they complete.

The OFT's Mergers Intelligence Unit has shown that it can monitor commercial transactions and target resources at cases that raise genuine questions. Competition advisers know this, too, warning their clients of the risks of failing to notify in difficult cases. This creates a virtuous circle. The tiny minority of completed cases that have had to be unwound in the past does not justify the additional burdens a mandatory regime would place on hundreds of businesses in future.

5. Create a statutory hearing officer with true independence from the OFT and Competition Commission – or Competition and Markets Authority. Parties often have genuine grievances over the time they are given to respond to an information request, statement of objections or provisional findings report. They may have concerns that their arguments have not been properly heard or that the authority has failed to follow its proper procedures. It can be in no-one's interest that the only recourse in these situations is to bring a judicial review action before the court.

Others will no doubt have their own top fives and it is, of course, easy to criticise. But if the Government is serious about encouraging growth through competition, it must ensure that competition law interventions are targeted and proportionate. All of this can be done without primary legislation and, far less, a merger of the OFT and Competition Commission. More competition law does not necessarily lead to more competition.

Nicholas Levy is a partner with Cleary Gottlieb Steen & Hamilton. Paul Gilbert (pictured above) is an associate and a former deputy director of competition policy at the Office of Fair Trading.

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