Recovery of financial penalties

7 (1) Amounts payable to Monitor of the kind mentioned in sub-paragraph (2) are
recoverable summarily as a civil debt (but this does not affect any other
method of recovery).

(2) 5The amounts are—

(a) a variable monetary penalty and any interest payable on it, or

(b) a non-compliance penalty.

Payments of penalties etc. into Consolidated Fund

8 Monitor must pay any sums it receives in respect of any of the following into
10the Consolidated Fund—

(a) a variable monetary penalty and any interest payable on it, or

(b) a non-compliance penalty.

Part 2 Enforcement undertakings

15Procedure

9 (1) Monitor must publish a procedure for entering into enforcement
undertakings.

(2) Monitor may revise the procedure and if it does so, Monitor must publish
the procedure as revised.

(3) 20Monitor must consult such persons as it considers appropriate before
publishing or revising the procedure.

10 (1) Where Monitor accepts an enforcement undertaking, Monitor must publish
the undertaking.

(2) But Monitor must not under sub-paragraph (1) publish any part of an
25enforcement undertaking which contains commercial information the
disclosure of which Monitor considers would or might significantly harm
the legitimate business interests of any person to whom it relates.

Variation of terms

11 The terms of an enforcement undertaking (including in particular the action
30specified under it and the period so specified within which the action must
be taken) may be varied if both the person giving the undertaking and
Monitor agree.

Compliance certificates

12 (1) Where Monitor is satisfied that an enforcement undertaking has been
35complied with, Monitor must issue a certificate to that effect (referred to in
this Schedule as a “compliance certificate”).

(2) A person who has given an enforcement undertaking may at any time make
an application to Monitor for a compliance certificate.

(3) The application must be made in such form, and accompanied by such
information, as Monitor requires.

(4) Monitor must decide whether or not to issue a compliance certificate, and
give notice to the applicant of its decision, before the end of the period of 14
5days beginning with the day after that on which the application is received.

13 (1) An appeal lies to the First-tier Tribunal against a decision of Monitor to
refuse an application for a certificate of compliance.

(2) The grounds for an appeal under this paragraph are that the decision—

(a) was based on an error of fact,

(b) 10was wrong in law, or

(c) was unfair or unreasonable.

(3) On an appeal under this paragraph, the Tribunal may confirm Monitor’s
decision or direct that it is not to have effect.

Inaccurate, incomplete or misleading information

14 15Where Monitor is satisfied that a person who has given an enforcement
undertaking has supplied Monitor with inaccurate, misleading or
incomplete information in relation to the undertaking—

(a) Monitor may treat the person as having failed to comply with the
undertaking, and

(b) 20if Monitor decides so to treat the person, Monitor must by notice
revoke any compliance certificate given to that person.

Section 123

SCHEDULE 12 Procedure on references under section 123

Contents etc. of reference

1 (1) 25A reference under section 123 must specify—

(a) Monitor’s reasons for proposing the method to which the reference
relates, and

(b) its representations as to why the grounds referred to in section 124(4)
do not apply.

(2) 30Monitor must give notice of the reference to—

(a) the National Health Service Commissioning Board, and

(b) each licence holder (referred to in this Schedule as an “objector”) who
objected to the proposed method to which the reference relates.

(3) The notice must be accompanied by a copy of the reference.

35Representations by objectors

2 (1) If an objector wishes to make representations to the Competition
Commission on the matters specified in the reference for the purposes of
paragraph 1(1), the objector must do so before the end of the period of 10
working days beginning with the day on which the objector receives the
40notice under paragraph 1(2).

(2) The objector must give Monitor a copy of the representations.

(3) If Monitor wishes to reply to representations under sub-paragraph (1), it
must do so before the end of the period of 10 working days beginning with
the day on which it receives the copy under sub-paragraph (2).

(4) 5Monitor must send a copy of its reply to the objector who made the
representations.

(5) In this Schedule, “working day” means any day other than—

(a) Saturday or Sunday,

(b) Christmas Day or Good Friday, or

(c) 10a bank holiday in England and Wales under the Banking and
Financial Dealings Act 1971.

Functions of Commission in relation to reference

3 (1) The following functions of the Competition Commission must be
performed, in accordance with rules under paragraph 11, by a group
15selected for the purpose by the Chairman of the Commission—

(a) considering a reference under section 123,

(b) making a determination on the reference,

(c) giving directions and taking other steps to give effect to the
Commission’s determination on the reference.

(2) 20A group selected under this paragraph must consist of three members of the
Commission.

(3) The Chairman of the Commission must appoint one of the members as chair
of the group.

(4) The Chairman of the Commission may select a member of the Commission
25to replace a person as a member of group if—

(a) the person being replaced has ceased to be a member of the
Commission,

(b) the Chairman is satisfied that the person being replaced will be
unable, for a substantial period, to perform duties as a member of the
30group, or

(c) it appears to the Chairman that it is inappropriate, because of a
particular interest of the person being replaced, for that person to
remain a member of the group.

(5) The replacement of a member of a group does not prevent the group from
35continuing after the replacement with anything begun before it.

(6) The Chairman of the Commission may be appointed as, or may be selected
to replace a person as, a member of a group (including as chair of the group).

(7) A decision of a group is effective only if—

(a) all the members of the group are present when it is made, and

(b) 40at least two members of the group are in favour of it.

Timetable for determination on reference

4 (1) The group with the function of making a determination on a reference must
make the determination before the end of the period of 30 working days

following the last day for the making by Monitor of a reply in accordance
with paragraph 2.

(2) If that group is satisfied that there are good reasons for departing from the
normal requirements, it may (on one occasion only) extend that period by
5not more than 20 working days.

(3) The Competition Commission must ensure that an extension under sub-
paragraph (2) is notified to—

(a) Monitor,

(b) the National Health Service Commissioning Board, and

(c) 10every objector who made representations in accordance with
paragraph 2.

Matters to be considered on determination

5 (1) If the group with the function of determining a reference considers it
necessary to disregard the matters referred to in sub-paragraph (2) in order
15to secure the making of the determination of the appeal within the period
allowed by paragraph 4, it may do so.

(2) The matters mentioned in sub-paragraph (1) are—

(a) all matters raised by an objector in representations under paragraph
2 that the objector did not raise at the time of the consultation under
20section 121, and

(b) all matters raised by Monitor in replies under paragraph 2 that it did
not include in the reference.

Production of documents

6 (1) The Competition Commission may by notice require a person to produce to
25it the documents specified or otherwise identified in the notice.

(2) The power to require the production of a document is a power to require its
production—

(a) at the time and place specified in the notice, and

(b) in a legible form.

(3) 30The Competition Commission may take copies of a document produced to
it under this paragraph.

Oral hearings

7 (1) For the purposes of this Schedule, an oral hearing may be held, and evidence
may be taken on oath by a group with the function of making a
35determination on a reference under section 123.

(2) A group with that function may administer oaths for the purposes of this
Schedule.

(3) The Competition Commission may by notice require a person—

(a) to attend at a time and place specified in the notice, and

(b) 40to give evidence at that time and place to a group with that function.

(4) At an oral hearing, the group conducting the hearing may require a person
who comes within sub-paragraph (5), if present at the hearing, to give
evidence or to make representations.

(5) A person comes within this sub-paragraph if the person is—

(a) 5an objector who has made representations in accordance with
paragraph 2,

(b) a person attending the hearing as a representative of a person
mentioned in paragraph (a), or

(c) a person attending the hearing as a representative of Monitor.

(6) 10A person who gives oral evidence at the hearing may be cross-examined by
or on behalf of any other person who is entitled to give evidence at the
hearing.

(7) If a person is not present at a hearing and so is not made subject to a
requirement under sub-paragraph (4)—

(a) 15the Competition Commission is not required to give notice to the
person under sub-paragraph (3), and

(b) the group conducting the hearing may make a determination on the
reference without hearing that person’s evidence or representations.

(8) Where a person is required under this paragraph to attend at a place more
20than 10 miles from that person’s place of residence, the Competition
Commission must pay the person the necessary expenses of attending.

Written statements

8 (1) The Commission may by notice require a person to produce a written
statement with respect to a matter specified in the notice to a group with the
25function of making a determination on a reference under section 123.

(2) The power to require the production of a written statement includes power
to specify the time and place at which it is to be produced.

(3) The written statement must be verified in accordance with a statement of
truth.

(4) 30In this paragraph and paragraph 9, “statement of truth” means a statement
that the person producing the document which includes the statement
believes the matters stated as facts in the document to be true.

Defaults in relation to evidence

9 (1) This paragraph applies if a person (“the defaulter”)—

(a) 35fails to comply with a notice or other requirement under paragraph
6, 7 or 8,

(b) in complying with a notice under paragraph 8, makes a statement
that is false in any material particular, or

(c) in providing information otherwise verified in accordance with a
40statement of truth required by rules under paragraph 11, provides
information that is false in a material particular.

(2) A member of the Commission may certify the failure, or the fact that a false
statement has been made, to the High Court.

(3) The High Court may inquire into a matter so certified.

(4) If the High Court, having heard any witness on behalf of or against the
defaulter and any statement in the defaulter’s defence, is satisfied that the
defaulter did, without reasonable excuse, the act referred to in sub-
paragraph (1), it may punish the defaulter as if the defaulter had been guilty
5of contempt of court.

General provisions relating to evidence

10 (1) No person may be compelled to give evidence under paragraph 6, 7 or 8
which the person could not be compelled to give in civil proceedings in the
High Court.

(2) 10A notice under paragraph 6, 7 or 8 may be given on the Competition
Commission’s behalf by a member of the Commission or its secretary.

Procedural rules

11 (1) The Competition Commission may make rules of procedure for
determinations on references under section 123.

(2) 15Those rules may include provision supplementing the provisions of this
Schedule in relation to any notice, hearing or requirement for which this
Schedule provides; and that provision may, in particular, impose time limits
or other restrictions on—

(a) the taking of evidence at an oral hearing, or

(b) 20the making of representations at an oral hearing.

(3) The rules may apply, with or without modification, provision included in
appeal rules under Schedule 22 to the Energy Act 2004.

(4) The Commission must publish rules made under this paragraph.

(5) Before making rules under this paragraph, the Commission must consult
25such persons as it considers appropriate.

(6) Rules under this paragraph may make different provision for different cases.

Costs

12 (1) A group that makes a determination on a reference under section 123 must
make an order requiring the payment to the Competition Commission of the
30costs incurred by the Commission in connection with the reference.

(2) Where it is determined that the method to which the reference relates is not
appropriate, the order must require those costs to be paid by Monitor.

(3) Where it is determined that the method to which the reference relates is
appropriate, the order must require those costs to be paid by such objectors
35as are specified in the order.

(4) Where the order specifies more than one objector, it may specify the
proportions in which the objectors are to be liable for the costs.

(5) The group that makes a determination on a reference under section 123 may
also make an order requiring Monitor or an objector who made
40representations in accordance with paragraph 2 to make payments to the
other in respect of costs incurred by the other in connection with the
determination.

(6) A person required by an order under this paragraph to pay a sum to another
person must comply with the order before the end of the period of 28 days
beginning with the day after the making of the order.

(7) Sums required to be paid by an order under this paragraph but not paid
5within that period are to carry interest at such rate as may be determined in
accordance with provision in the order.

Power to modify time limits

13 The Secretary of State may by order vary any period specified in this
Schedule as the period within which something must be done.

Section 153

10SCHEDULE 13 Part 3: minor and consequential amendments

General

1 (1) Any reference in an instrument or document to the Independent Regulator
of NHS Foundation Trusts is to be read, in relation to any time after the
15commencement of section 57, as a reference to Monitor.

(2) Any reference in this Act or in any other enactment, instrument or document
to Monitor is to be read, in relation to any time before that commencement,
as a reference to the Independent Regulator of NHS Foundation Trusts.

Public Bodies (Admission to Meetings) Act 1960 (c. 67)Public Bodies (Admission to Meetings) Act 1960 (c. 67)

2 20In the Schedule to the Public Bodies (Admission to Meetings) Act 1960, after
paragraph (bj) insert—

“(bk) Monitor;”.

Parliamentary Commissioner Act 1967 (c. 13)Parliamentary Commissioner Act 1967 (c. 13)

3 (1) In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
25subject to investigation)—

(a) at the appropriate place insert—

• “ Monitor.”, and

(b) omit the entry for the Independent Regulator of NHS Foundation
Trusts.

(2) 30In consequence of the repeal made by sub-paragraph (1)(b), omit paragraph
17 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).

Superannuation Act 1972 (c. 11)Superannuation Act 1972 (c. 11)

4 (1) In Schedule 1 to the Superannuation Act 1972 (kinds of employment to
35which a scheme under section 1 of that Act can apply), omit the entry for the
Independent Regulator of NHS Foundation Trusts.

(2) In consequence of that repeal, omit paragraph 5(3) of Schedule 2 to the
Health and Social Care (Community Health and Standards) 2003 (which
inserted the entry in question).

House of Commons Disqualification Act 1975 (c. 24)House of Commons Disqualification Act 1975 (c. 24)

5 (1) 5In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975
(other disqualifying offices)—

(a) at the appropriate place insert—

• “ Chair or other member of Monitor.”, and

(b) omit the entry for the Chairman and other members of the
10Independent Regulator of NHS Foundation Trusts.

(2) In consequence of the repeal made by sub-paragraph (1)(b), omit paragraph
18 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).

Northern Ireland Assembly Disqualification Act 1975 (c. 25)Northern Ireland Assembly Disqualification Act 1975 (c. 25)

6 (1) 15In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (other disqualifying offices)—

(a) at the appropriate place insert—

• “ Chair or other member of Monitor.”, and

(b) omit the entry for the Chairman and other members of the
20Independent Regulator of NHS Foundation Trusts.

(2) In consequence of the repeal made by sub-paragraph (1)(b), omit paragraph
19 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).

Freedom of Information Act 2000 (c. 36)Freedom of Information Act 2000 (c. 36)

7 25In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public
bodies and offices: general)—

(a) at the appropriate place insert—

• “ Monitor.”, and

(b) omit the entry for the Independent Regulator of NHS Foundation
30Trusts.

National Health Service Act 2006 (c. 41)National Health Service Act 2006 (c. 41)

8 The National Health Service Act 2006 is amended as follows.

9 (1) Omit section 31 and Schedule 8 (continuation and constitution of the
Independent Regulator of NHS Foundation Trusts).

(2) 35In consequence of that repeal, omit paragraph 12 of Schedule 3 to the Health
Act 2009 (which amended Schedule 8).

10 (1) Omit section 32 of that Act (general duty of regulator).

(2) Despite that repeal, that section is to continue, pending the commencement
of section 182 (abolition of NHS trusts in England) to have effect so far as
40necessary for the purposes of sections 33 to 36 of that Act.

11 In section 275(1) (general interpretation), at the appropriate place, insert—

• ““the regulator” means Monitor,”.

12 In section 276 (index of defined expressions), in the entry for “the regulator”,
for “section 31(1)” substitute “section 275(1)”.

5National Health Service (Wales) Act 2006 (c. 42)National Health Service (Wales) Act 2006 (c. 42)

13 In section 184(2)(b) of the National Health Service (Wales) Act 2006 (matters
to be contained in reports by overview and scrutiny committee of local
authority), for “the Independent Regulator of NHS Foundation Trusts”
substitute “Monitor”.

10Health and Social Care Act 2008 (c. 14)2008 (c. 14)

14 The Health and Social Care Act 2008 is amended as follows.

15 In section 30(3) (urgent applications for cancellation of registration of service
provider: notice requirements), for paragraph (c) substitute—

“(c) where the person registered as a service provider is a person
15who holds a licence under Chapter 4 of Part 3 of the Health
and Social Care Act 2011, to Monitor,”.

16 In section 39(1) (notice requirements in relation to certain matters), for
paragraph (c) substitute—

“(c) where the person registered as a service provider in respect
20of the activity is a person who holds a licence under Chapter
4 of Part 3 of the Health and Social Care Act 2011, to
Monitor,”.

17 In section 59 (power for Secretary of State to confer additional functions on
Care Quality Commission), for subsection (2) substitute—

“(2) 25The Secretary of State must consult Monitor before making provision
under subsection (1) in relation to persons who hold licences under
Chapter 4 of Part 3 of the Health and Social Care Act 2011.”

Health Act 2009 (c. 21)2009 (c. 21)

18 In section 2(2) of the Health Act 2009 (bodies required to have regard to NHS
30Constitution), for paragraph (f) substitute—

“(f) Monitor;”.

Section 182

SCHEDULE 14 Abolition of NHS trusts in England: consequential amendments

Part 1 35Amendments of the National Health Service Act 2006

1 The National Health Service Act 2006 is amended as follows.

2 In section 4(2) (definition of “high security psychiatric services”), omit “and
paragraph 15 of Schedule 4 (NHS trusts)”.

3 In section 8(2) (bodies to whom Secretary of State may give directions), omit
paragraph (c).

4 5In section 9 (NHS contracts), omit subsection (3).

5 In section 40 (power of Secretary of State to give financial assistance to NHS
foundation trusts), for subsection (4) substitute—

“(4) For the purposes of subsection (3), an agreement is an externally
financed development agreement if it is certified as such by the
10Secretary of State.

(4A) The Secretary of State may give a certificate under subsection (4) if—

(a) in the opinion of the Secretary of State, the purpose or main
purpose of the agreement is the provision of facilities or
services in connection with the discharge by the NHS
15foundation trust of any of its functions, and

(b) a person proposes to make a loan to, or provide any other
form of finance for, another party in connection with the
agreement.

(4B) In subsection (5)(b), “another party” means any party to the
20agreement other than the NHS foundation trust.”

6 In section 42 (public dividend capital), after subsection (1) insert—

“(1A) The reference in subsection (1) to an NHS trust is a reference to an
NHS trust which was established under section 25 of this Act before
its repeal by section 182 of the Health and Social Care Act 2011.”

7 25In section 51 (trust funds and trustees), omit subsection (4).

8 In section 56(1) (application for merger of NHS foundation trusts), in
paragraph (b), omit “or an NHS trust”.

9 In section 56A(1) (application for acquisition of NHS foundation trust or
NHS trust) (as inserted by section 172), in paragraph (b), omit “or an NHS
30trust”.

10 In section 57 (mergers, acquisitions and separation of NHS foundation
trusts)—

(a) in subsection (3)(a), omit “, an NHS trust”,

(b) in subsection (4), omit “or an NHS trust”, and

(c) 35omit subsection (5).

11 In section 65(1) (interpretation for provisions about NHS foundation trusts),
in the definition of “health service body”, omit “an NHS trust,”.

12 In section 65A(1) (application of trust special administration regime), omit
paragraph (a).

13 40Section 65B (appointment of trust special administrator to exercise functions
of chairman and directors of NHS trust) ceases to have effect, except in so far
as it has effect by virtue of section 65E(6) (de-authorised NHS foundation
trusts).