Takeover panel must retain flexibility

The Takeover Panel’s imposition of a bid deadline on the Glazer camp in the Man-chester United saga is just the latest edict to a potential bidder to put up or shut up. In the old days, the panel pretty much confined itself to refereeing the action once the formal bid timetable began. In the last year or so, though, the panel has become much more interventionist. That put up or shut up rulings have simply mushroomed is mainly thanks to the rise of the virtual bid – a phenomenon driven mainly, but not entirely, by the private equity houses. Permira’s bid for WHSmith, TPG’s for British Vita and Apax’s for Woolworths – plus, of course, Philip Green’s bid for M&S – all immediately spring to mind.

But there’s another side to the panel’s interventionism that is not viewed quite so phlegmatically. An increasingly vocal minority of M&A lawyers are becoming impatient with what one magic circle partner calls the “massive amount of overconsultation”.

Another magic circle partner says: “We’re being deluged with unbelievably complicated proposals. Keeping up with what they’re trying to do is virtually impossible. You can’t get a flexible ruling out of them anymore.”

It’s certainly true that the panel has taken to publishing more and more under new director-general Richard Murley, whether they’re general statements of practice or full-on consultation documents many inches thick.

Blame the Human Rights Act. The act’s impact on regulatory bodies has had all sorts of effects. The Takeover Panel had to separate its rule-making function from its enforcement function. Right-thinking people will applaud its efforts towards transparency, but the problem facing the committee which handles code amendments is that the code itself has always evolved piecemeal. It may be coherent in the round, but there are plenty of wrinkles to iron out – which means lots and lots of tinkering.

One prominent partner suggests that the panel should be more schematic in its approach. “We take our responsibility to contributing to the regulatory process very seriously, so we have to respond,” he argues. “They should consider a major consultation once a year rather than issue revisions constantly.”

Lawyers have always rated the panel much higher than most other regulatory authorities. One of the best things about the Takeover Panel has always been its nimbleness of response. It would be a darn shame if bureaucracy vanquished flexibility.