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Health and Social Care BillPage 360

Scottish Public Services Ombudsman Act 2002 (asp 11)2002 (asp 11)

13 The Scottish Public Services Ombudsman Act 2002 is amended as follows.

14 In section 7 (matters which may be investigated: restrictions), omit
subsection (6A).

15 5In Part 2 of Schedule 2 (persons liable to investigation), omit paragraph 90.

Civil Contingencies Act 2004 (c. 36)Civil Contingencies Act 2004 (c. 36)

16 In Schedule 1 to the Civil Contingencies Act 2004, in Part 1 (list of Category
1 responders) for paragraph 9 substitute—

9 The Secretary of State, in so far as the functions of the Secretary of
10State include responding to emergencies by virtue of —

(a) the Secretary of State’s functions under section 2A of the
National Health Service Act 2006,

(b) the Secretary of State’s functions under section 55 of the
Health and Social Care Act 2011 in so far as it applies in
15relation to Wales or Scotland, or

(c) arrangements made by the Welsh Ministers or Scottish
Ministers under which the Secretary of State exercises on
their behalf functions in relation to protecting the public in
Wales or Scotland from disease or other dangers to health.

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

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

18 In section 9 (NHS contracts), in subsection (4) omit paragraph (j).

19 In section 71 (schemes for meeting losses and liabilities of certain health
bodies)—

(a) 25in subsection (2) omit paragraph (g), and

(b) in subsection (5) for “, (f) and (g)” substitute “and (f)”.

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

20 The National Health Service (Wales) Act 2006 is amended as follows.

21 In section 7 (NHS contracts), in subsection (4) omit paragraph (j).

22 30In section 30 (schemes for meeting losses and liabilities of certain health
bodies)—

(a) after paragraph (b) insert “and”, and

(b) omit paragraph (e) and the preceding “and”.

National Health Service (Consequential Provisions) Act 2006 (c. 43)National Health Service (Consequential Provisions) Act 2006 (c. 43)

23 35In Schedule 1 to the National Health Service (Consequential Provisions) Act
2006 (consequential amendments), omit paragraphs 257 to 259 (and the
cross-heading preceding them).

Health and Social Care BillPage 361

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

24 In section 159 (functions of Health Protection Agency in relation to
biological substances), omit subsections (2) to (6).

Health and Personal Social Services (Northern Ireland) Order 1991 (No. 194 (N.I. 1))

25 5In article 8 of the Health and Personal Social Services (Northern Ireland)
Order 1991 (health and social services contracts), in paragraph (2)(g) omit
paragraph (vi).

Section 58

SCHEDULE 8 Monitor

10Membership

(1) Monitor is to consist of—

(a) a chair appointed by the Secretary of State,

(b) at least four other members so appointed, and

(c) the chief executive and other members appointed in accordance with
15paragraph 2.

(2) The number of executive members must be less than the number of non-
executive members.

(3) In this Schedule—

(a) references to non-executive members of Monitor are references to the
20members appointed in accordance with sub-paragraph (1)(a) and (b),
and

(b) references to executive members of Monitor are references to the
other members.

The chief executive and other executive members: appointment and status

(1) 25The chief executive and the other executive members of Monitor are to be
appointed by the non-executive members.

(2) A person may not be appointed as chief executive or as another executive
member without the consent of the Secretary of State.

(3) The non-executive members may not appoint more than five executive
30members without the consent of the Secretary of State.

(4) The chief executive and the other executive members are to be employees of
Monitor.

Non-executive members: tenure

(1) A person holds and vacates office as a non-executive member of Monitor in
35accordance with that person’s terms of appointment.

(2) A person may at any time resign from office as a non-executive member by
giving notice to the Secretary of State.

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(3) The Secretary of State may at any time remove a person from office as a non-
executive member on any of the following grounds—

(a) incapacity,

(b) misbehaviour, or

(c) 5failure to carry out his or her duties as a non-executive member.

(4) The Secretary of State may suspend a person from office as a non-executive
member if it appears to the Secretary of State that there are or may be
grounds to remove the person from office under sub-paragraph (3).

(5) A person may  not be appointed as a non-executive member for a period of
10more than four years.

(6) A person who ceases to be a non-executive member is eligible for re-
appointment.

Suspension from office

(1) This paragraph applies where a person is suspended under paragraph 3(4).

(2) 15The Secretary of State must give notice of the decision to the person; and the
suspension takes effect on receipt by the person of the notice.

(3) The notice may be—

(a) delivered in person (in which case, the person is taken to receive it
when it is delivered), or

(b) 20sent by first class post to the person’s last known address (in which
case, the person is taken to receive it on the third day after the day on
which it is posted).

(4) The initial period of suspension must not exceed six months.

(5) The Secretary of State may at any time review the suspension.

(6) 25The Secretary of State—

(a) must review the suspension if requested in writing by the person to
do so, but

(b) need not review the suspension less than three months after the
beginning of the initial period of suspension.

(7) 30Following a review during a period of suspension, the Secretary of State
may—

(a) revoke the suspension, or

(b) suspend the person for another period of not more than six months
from the expiry of the current period.

(8) 35The Secretary of State must revoke the suspension if the Secretary of State—

(a) decides that there are no grounds to remove the person from office
under paragraph 3(3), or

(b) decides that there are grounds to do so but does not remove the
person from office under that provision.

(1) 40Where a person is suspended from office as the chair under paragraph 3(4),
the Secretary of State may appoint a non-executive member as interim chair
to exercise the chair’s functions.

(2) Appointment as interim chair is for a term not exceeding the shorter of—

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(a) the period ending with either—

(i) the appointment of a new chair, or

(ii) the revocation or expiry of the existing chair’s suspension,
and

(b) 5the remainder of the interim chair’s term as a non-executive member.

(3) A person who ceases to be the interim chair is eligible for re-appointment.

Payment of non-executive members

(1) Monitor must pay to its non-executive members such remuneration and
allowances as the Secretary of State may determine.

(2) 10Monitor must pay or make provision for the payment of such pensions,
allowances or gratuities as it may, with the approval of the Secretary of State,
determine to or in respect of any person who is or has been a non-executive
member.

(3) If a person ceases to be a non-executive member and the Secretary of State
15decides that there are exceptional circumstances which mean that the person
should be compensated, Monitor must pay compensation to the person of
such amount as the Secretary of State may determine.

Staff

(1) Monitor may appoint such persons to be employees of Monitor as it
20considers appropriate.

(2) Employees of Monitor are to be paid such remuneration and allowances as
Monitor may determine.

(3) Employees of Monitor are to be appointed on such other terms and
conditions as Monitor may determine.

(4) 25Monitor may pay or make provision for the payment of such pensions,
allowances or gratuities as it may determine to or in respect of any person
who is or has been an employee of Monitor.

(5) Before making a determination as to remuneration, pensions, allowances or
gratuities for the purposes of sub-paragraph (2) or (4), Monitor must obtain
30the approval of the Secretary of State to its policy on that matter.

Superannuation

(1) Sub-paragraph (2) applies where a person who is an active or deferred
member of a scheme under section 1 of the Superannuation Act 1972 is
appointed as chair.

(2) 35The Minister for the Civil Service may determine that the person’s office as
chair is to be treated for the purposes of the scheme as service in the
employment by reference to which the person is a member (whether or not
any benefits are payable by virtue of paragraph 6(2)).

(3) Employment with Monitor is among the kinds of employment to which a
40scheme under section 1 of the Superannuation Act 1972 can apply; and,
accordingly, in Schedule 1 to that Act (in which those kinds of employment

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are listed), at the end of the list of Other Bodies insert—

(4) Monitor must pay to the Minister for the Civil Service, at such times as the
Minister may direct, such sums as the Minister may determine in respect of
5any increase attributable to sub-paragraph (2) or (3) in the sums payable out
of money provided by Parliament under the Superannuation Act 1972.

Committees

(1) Monitor may appoint such committees and sub-committees as it considers
appropriate.

(2) 10A committee or sub-committee may consist of or include persons who are
not members or employees of Monitor.

(3) Monitor may pay such remuneration and allowances as it determines to any
person who—

(a) is a member of a committee or sub-committee, but

(b) 15is not an employee of Monitor,

whether or not that person is a non-executive member of Monitor.

Procedure

(1) Monitor may regulate its own procedure.

(2) The validity of any act of Monitor is not affected by any vacancy among the
20members or by any defect in the appointment of a member.

Exercise of functions

(1) Monitor must exercise its functions effectively, efficiently and economically.

(2) Monitor may arrange for the exercise of its functions on its behalf by—

(a) a non-executive member;

(b) 25an employee (including the chief executive);

(c) a committee or sub-committee.

Assistance

(1) Monitor may arrange for persons to assist it in the exercise of its functions in
relation to—

(a) 30a particular case, or

(b) cases of a particular description.

(2) Such arrangements may include provision with respect to the payment of
remuneration and allowances to, or amounts in respect of, such persons.

Borrowing

(1) 35Monitor may, with the consent of the Secretary of State, borrow money
temporarily by way of overdraft.

(2) But subject to that, and subject to sections 142 and 143 (power to borrow for
exercising functions in relation to financial assistance and power of
Secretary of State to lend etc.), Monitor may not borrow money.

Health and Social Care BillPage 365

Acquiring information

(1) Monitor may obtain, compile and keep under review information about
matters relating to the exercise of its functions.

(2) Where Monitor exercises the power under sub-paragraph (1), it must do so
5with a view to (among other things) ensuring that it has sufficient
information to take informed decisions and to exercise its other functions
effectively.

(3) In exercising the power under sub-paragraph (1), Monitor may carry out,
commission or support (financially or otherwise) research.

10General power

15 Monitor may do anything which appears to it to be necessary or expedient
for the purposes of, or in connection with, the exercise of its functions.

Finance

(1) The Secretary of State may make payments to Monitor out of money
15provided by Parliament of such amounts as the Secretary of State considers
appropriate.

(2) Payments made under sub-paragraph (1) may be made at such times and on
such conditions (if any) as the Secretary of State considers appropriate.

Accounts of NHS foundation trusts

(1) 20Monitor must prepare in respect of each financial year a set of accounts
which consolidates the annual accounts of all NHS foundation trusts.

(2) The Secretary of State may, with the approval of the Treasury, direct
Monitor to prepare a set of accounts in respect of such period as may be
specified in the direction which consolidates any accounts prepared by NHS
25foundation trusts by virtue of paragraph 25(1A) of Schedule 7 to the
National Health Service Act 2006 in respect of that period.

(3) In preparing any consolidated accounts under this paragraph, Monitor must
comply with directions given by the Secretary of State with the approval of
the Treasury as to—

(a) 30the content and form of the consolidated accounts;

(b) the methods and principles according to which the consolidated
accounts should be prepared.

(4) Monitor must send a copy of any consolidated accounts under this
paragraph to the Secretary of State and, if the Secretary of State so directs,
35the Comptroller and Auditor General—

(a) accompanied by such other reports or information as the Secretary of
State may direct, and

(b) within the relevant period.

(5) In sub-paragraph (4)(b), the relevant period is—

(a) 40in relation to consolidated accounts under sub-paragraph (1), such
period after the end of the financial year concerned as the Secretary
of State may direct;

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(b) in relation to consolidated accounts under sub-paragraph (2), such
period as the Secretary of State may direct.

(6) Before giving a direction under sub-paragraph (5), the Secretary of State
must consult Monitor.

(7) 5The Comptroller and Auditor General must—

(a) examine, certify and report on any consolidated accounts sent under
this paragraph,

(b) if the Secretary of State so directs, send a copy of the report on the
accounts to the Secretary of State, and

(c) 10if the Secretary of State so directs, lay copies of the accounts and the
report on them before Parliament.

(8) Monitor must act with a view to securing that NHS foundation trusts—

(a) comply promptly with requests from it or the Secretary of State for
information relating to their accounts, and

(b) 15otherwise act so as to facilitate the preparation of accounts by the
Secretary of State.

(9) This paragraph does not apply to the financial year specified for the
purposes of section 152(7) (which provides for the order that commences
section 152, which itself relates to the preparation of the accounts of NHS
20foundation trusts, to specify the first financial year to which that section will
apply) or to the subsequent financial years.

Accounts of Monitor

(1) Monitor must keep proper accounts and proper records in relation to the
accounts.

(2) 25The Secretary of State may, with the approval of the Treasury, give
directions to Monitor as to—

(a) the content and form of its accounts, and

(b) the methods and principles to be applied in the preparation of its
accounts.

(3) 30In sub-paragraph (2), the reference to accounts includes Monitor’s annual
accounts prepared under paragraph 19 and any interim accounts prepared
by virtue of paragraph 20.

(1) Monitor must prepare annual accounts in respect of each financial year.

(2) Monitor must send copies of the annual accounts to the Secretary of State
35and the Comptroller and Auditor General within such period after the end
of the financial year to which the accounts relate as the Secretary of State
may direct.

(3) The Comptroller and Auditor General must—

(a) examine, certify and report on the annual accounts, and

(b) 40lay copies of them and the report before Parliament.

(1) The Secretary of State may, with the approval of the Treasury, direct
Monitor to prepare accounts in respect of such period or periods as may be
specified in the direction (“interim accounts”).

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(2) Monitor must send copies of any interim accounts to the Secretary of State
and, if the Secretary of State so directs, the Comptroller and Auditor General
within such period as the Secretary of State may direct.

(3) The Comptroller and Auditor General must—

(a) 5examine, certify and report on any interim accounts sent by virtue of
sub-paragraph (2),

(b) if the Secretary of State so directs, send a copy of the report on the
accounts to the Secretary of State, and

(c) if the Secretary of State so directs, lay copies of the accounts and the
10report on them before Parliament.

Reports and other information

(1) As soon as practicable after the end of each financial year, Monitor must
prepare an annual report on how it has exercised its functions during the
year.

(2) 15The report must, in particular, set out the measures that Monitor has taken
to promote economy, efficiency and effectiveness in the use of resources for
the exercise of its functions.

(3) Monitor must—

(a) lay a copy of the report before Parliament, and

(b) 20once it has done so, send a copy of it to the Secretary of State.

(4) Monitor must provide the Secretary of State with—

(a) such other reports and information relating to the exercise of
Monitor’s functions as the Secretary of State may require;

(b) such information about NHS foundation trusts that Monitor has in
25its possession as the Secretary of State may require.

Recommendations by Committees in Parliament

22 Monitor must respond in writing to any recommendation about its exercise
of its functions that a Committee of either House of Parliament or a
Committee of both Houses makes.

30Seal and evidence

(1) The application of Monitor’s seal must be authenticated by the signature of
the chair or any other person who has been authorised (generally or
specifically) for that purpose.

(2) A document purporting to be duly executed under Monitor’s seal or to be
35signed on its behalf must be received in evidence and, unless the contrary is
proved, taken to be so executed or signed.

Status

(1) Monitor must not be regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the Crown.

(2) 40Monitor’s property must not be regarded as property of, or property held on
behalf of, the Crown.

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Section 73

SCHEDULE 9 Requirements under section 71: undertakings

Procedure

(1) Monitor must publish a procedure for entering into section 73 undertakings.

(2) 5Monitor may revise the procedure and, if it does so, Monitor must publish
the procedure as revised.

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

(1) Where Monitor accepts a section 73 undertaking, Monitor must publish the
10undertaking.

(2) But Monitor must not under sub-paragraph (1) publish any part of a section
73 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.

15Variation of terms

3 The terms of a section 73 undertaking (including in particular the action
specified 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.

20Compliance certificates

(1) Where Monitor is satisfied that a section 73 undertaking has been complied
with, Monitor must issue a certificate to that effect (referred to in this
Schedule as a “compliance certificate”).

(2) A person who has given a section 73 undertaking may at any time make an
25application 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
30days beginning with the day after that on which the application is received.

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

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

(a) based on an error of fact,

(b) 35wrong in law, or

(c) 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.

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Inaccurate, incomplete or misleading information

6 Where Monitor is satisfied that a person who has given a section 73
undertaking has supplied Monitor with inaccurate, misleading or incorrect
information in relation to the undertaking—

(a) 5Monitor may treat the person as having failed to comply with the
undertaking, and

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

Sections 99 and 139

SCHEDULE 10 10References by Monitor to the Competition Commission

Variation of reference

(1) Monitor may, at any time, by notice given to the Competition Commission
vary a reference—

(a) by adding to the matters specified in the reference, or

(b) 15by excluding from the reference some of the matters so specified.

(2) On receipt of a notice under sub-paragraph (1), the Commission must give
effect to the variation.

Monitor’s opinion of public interest etc.

2 Monitor may specify in a reference, or a variation under paragraph 1, for the
20purpose of assisting the Competition Commission in carrying out the
investigation on the reference—

(a) any effects adverse to the public interest which Monitor considers
the matters specified in the reference or variation have or may be
expected to have, and

(b) 25any changes in relation to those matters by which Monitor considers
those effects could be remedied or prevented.

Publication etc. of reference

3 As soon as practicable after making a reference, or a variation under
paragraph 1, Monitor—

(a) 30must send a copy of the reference or variation to the relevant
persons, and

(b) must publish particulars of the reference or variation.

Information

(1) Monitor must, for the purpose of assisting the Competition Commission in
35carrying out an investigation on a reference, or in carrying out the function
under paragraph 8, give the Commission—

(a) such information in Monitor’s possession as relates to matters within
the scope of the investigation or the carrying out of the function
and—

(i) 40is requested by the Commission for that purpose, or

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