Health and Social Care Bill (HL Bill 119)

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(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

6 Where Monitor is satisfied that a person who has given a section 75
5undertaking has supplied Monitor with inaccurate, misleading or incorrect
information in relation to the undertaking—

(a) Monitor 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
10revoke any certificate of compliance given to that person.

Sections 101 and 141

SCHEDULE 10 References by Monitor to the Competition Commission

Variation of reference

1 (1) Monitor may, at any time, by notice given to the Competition Commission
15vary a reference—

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

(b) by 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.

20Monitor’s opinion of public interest etc.

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

(a) any effects adverse to the public interest which Monitor considers
25the matters specified in the reference or variation have or may be
expected to have, and

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

Publication etc. of reference

3 30As soon as practicable after making a reference, or a variation under
paragraph 1, Monitor—

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

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

35Information

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

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

(ii) 5is information which Monitor considers it would be
appropriate for that purpose to give to the Commission
without request, and

(b) such other assistance as the Commission may require, and as is
within Monitor’s power to give, in relation to any such matters.

(2) 10The Commission must, for the purpose of carrying out the investigation or
the function, take account of such information as is given to it for that
purpose under sub-paragraph (1).

Time limits

5 (1) A reference must specify a period within which the Competition
15Commission must make a report on the reference.

(2) A period specified for the purposes of sub-paragraph (1) must not be longer
than six months beginning with the date of the reference.

(3) A report of the Commission on a reference does not have effect (and no
action may be taken in relation to it under paragraph 7) unless the report is
20made before the end of—

(a) the period specified in the reference, or

(b) such further period as is allowed under sub-paragraph (4).

(4) Monitor may, if it receives representations on the subject from the
Competition Commission and is satisfied that there are special reasons why
25the report cannot be made within the period specified in the reference,
extend the period by no more than six months.

(5) But Monitor may not make more than one extension under sub-paragraph
(4) in relation to the same reference.

(6) Where Monitor makes an extension under sub-paragraph (4), it must send
30notice of the extension to the relevant persons.

(7) Monitor must also publish the notice.

Reports on references

6 (1) In making a report on a reference, the Competition Commission—

(a) must include in the report definite conclusions on the questions in
35the reference together with such an account of its reasons for those
conclusions as it considers expedient for facilitating a proper
understanding of those questions and of its conclusions,

(b) where it concludes that any of the matters specified in the reference
operate, or may be expected to operate, against the public interest,
40must specify in the report the effects adverse to the public interest
which those matters have or may be expected to have, and

(c) where it concludes that any adverse effects so specified could be
remedied or prevented by changes in relation to the matters
specified in the reference, must specify in the report changes which
45could remedy or prevent those effects.

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(2) For the purposes of paragraphs 7 and 8, a conclusion in a report of the
Commission is to be disregarded if the conclusion is not that of at least two-
thirds of the members of the group constituted in connection with the
reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act
51998.

(3) If a member of a group so constituted disagrees with a conclusion in a report
made on a reference, the report must, if the member so wishes, include a
statement of the member’s disagreement and reasons for disagreeing.

(4) A report of the Commission on a reference must be sent to Monitor.

(5) 10On receiving a report on a reference, Monitor must send a copy of it to the
Secretary of State.

(6) Not less than 14 days after the Secretary of State receives that copy, Monitor
must send a copy to the relevant persons.

(7) Not less than 24 hours after complying with sub-paragraph (6), Monitor
15must publish the report.

Changes following report

7 (1) This paragraph applies where a report of the Competition Commission on a
reference—

(a) includes conclusions to the effect that any of the matters specified in
20the reference operate, or may be expected to operate, against the
public interest,

(b) specifies effects adverse to the public interest which those matters
have or may be expected to have,

(c) includes conclusions to the effect that those effects could be
25remedied or prevented by changes to the matters specified in the
reference, and

(d) specifies changes by which those effects could be remedied or
prevented.

(2) Monitor must make such changes to the matters specified in the reference as
30it considers necessary for the purpose of remedying or preventing the
adverse effects specified in the report.

(3) Before making changes under this paragraph, Monitor must have regard to
the changes specified in the report.

(4) Before making changes under this paragraph, Monitor must send a notice—

(a) 35stating that it proposes to make the changes and setting out their
effect,

(b) stating the reasons why it proposes to make the changes, and

(c) specifying the period within which representations with respect to
the changes may be made.

(5) 40A period specified for the purposes of sub-paragraph (4)(c) must not be less
than 28 days beginning with the day after that on which the notice is
published.

(6) Monitor must send the notice to the relevant persons.

(7) Monitor must also publish the notice.

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(8) After considering such representations as it receives before the end of the
period specified under sub-paragraph (4)(c), Monitor must send a notice to
the Competition Commission—

(a) specifying the changes it proposes to make to remedy or prevent the
5adverse effects specified in the report, and

(b) stating the reasons for proposing to make the changes.

(9) Monitor must include with the notice under sub-paragraph (8) a copy of the
representations referred to in that sub-paragraph.

(10) If a direction under paragraph 8 is not given to Monitor before the end of the
10period of four weeks beginning with the date on which it sends the notice
under sub-paragraph (8), Monitor must make the changes specified in the
notice.

(11) If a direction under that paragraph is given to Monitor before the end of that
period, Monitor must make such of the changes as are not specified in the
15direction.

Competition Commission’s power to veto changes

8 (1) The Competition Commission may, within the period of four weeks
beginning with the day on which it is sent a notice under paragraph 7(8),
direct Monitor—

(a) 20not to make the changes set out in the notice, or

(b) not make such of the changes as may be specified in the direction.

(2) Monitor must comply with a direction under sub-paragraph (1).

(3) The Secretary of State may, within that period and on the application of the
Commission, direct that the period for giving a direction under sub-
25paragraph (1) (and, accordingly, the period referred to in paragraph 7(10)) is
to be extended by 14 days.

(4) The Commission may give a direction under sub-paragraph (1) only in
respect of such of the changes specified in the notice under paragraph 7(8)(a)
as it considers are not necessary for the purpose of remedying or preventing
30one or more of the adverse effects specified in the report as effects which
could be remedied or prevented by changes.

(5) If the Commission gives a direction under sub-paragraph (1), it—

(a) must give notice specifying the changes proposed by Monitor, the
terms of the direction and the reasons for giving it, and

(b) 35must itself make such changes to the matters specified in the
reference as it considers necessary for the purpose of remedying or
preventing the effects referred to in sub-paragraph (6).

(6) The effects mentioned in sub-paragraph (5)(b) are—

(a) in the case of a direction under sub-paragraph (1)(a), the adverse
40effects specified in the report as effects which could be remedied or
prevented by changes, or

(b) in the case of a direction under sub-paragraph (1)(b), such of those
adverse effects as are not remedied or prevented by the changes
made by Monitor under paragraph 7(11).

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(7) In exercising its function under sub-paragraph (5)(b), the Commission must
have regard to the matters to which Monitor must have regard when
determining the matters specified in the reference.

(8) Before making changes under sub-paragraph (5)(b), the Commission must
5send a notice—

(a) stating that it proposes to make the changes and specifying them,

(b) stating the reason why it proposes to make them, and

(c) specifying the period within which representations on the proposed
changes may be made.

(9) 10The period specified for the purposes of sub-paragraph (8)(c) must not be
less than 28 days beginning with the date on which the notice is published.

(10) The Commission must send a notice under sub-paragraph (8) to the relevant
persons.

(11) The Commission must also publish the notice.

(12) 15After making changes under this paragraph, the Commission must publish
a notice—

(a) stating that it has made the changes and specifying them, and

(b) stating the reason why it has made them.

Disclosure etc.

9 (1) 20Before making a report on a reference, giving or sending a notice under
paragraph 8(5)(a) or (8) or publishing a notice under paragraph 8(12), the
Competition Commission must have regard to the following considerations.

(2) The first consideration is the need to exclude from disclosure (so far as
practicable) any information the disclosure of which the Commission
25considers is contrary to the public interest.

(3) The second consideration is the need to exclude from disclosure (so far as
practicable)—

(a) commercial information the disclosure of which the Commission
considers would or might significantly harm the legitimate business
30interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose
disclosure the Commission considers would or might significantly
harm the individual’s interests.

(4) The third consideration is the extent to which the disclosure of the
35information mentioned in sub-paragraph (3)(a) or (b) is necessary for the
purposes of the report.

(5) For the purposes of the law relating to defamation, absolute privilege
attaches to the report or notice.

Powers of investigation

10 (1) 40The following sections of Part 3 of the Enterprise Act 2002 (mergers) apply,
with the modifications in sub-paragraphs (3), (5), (6) and (8) to (11) for the
purposes of a reference as they apply for the purposes of references under
that Part—

(a) section 109 (attendance of witnesses and production of documents),

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(b) section 110 (enforcement of powers under section 109: general),

(c) section 111 (penalties),

(d) section 112 (penalties: main procedural requirements),

(e) section 113 (payments and interest by instalments),

(f) 5section 114 (appeals in relation to penalties),

(g) section 115 (recovery of penalties),

(h) section 116 (statement of policy),

(i) section 117 (offence of supplying false or misleading information),
and

(j) 10section 125 (offences by bodies corporate) so far as relating to section
117.

(2) Those sections of that Part of that Act apply, with the modifications in sub-
paragraphs (4), (5) and (7) to (11), for the purposes of an investigation by the
Competition Commission in the exercise of its functions under paragraph 8,
15as they apply for the purposes of an investigation on references under that
Part.

(3) Section 110, in its application by virtue of sub-paragraph (1), has effect as
if—

(a) subsection (2) were omitted,

(b) 20for subsections (5) to (8) there were substituted—

(5) Where the Commission considers that a person has
intentionally altered, suppressed or destroyed a document
which he has been required to produce under section 109, it
may impose a penalty in accordance with section 111., and

(c) 25in subsection (9), for the words from “or (3)” to “section 65(3))” there
were substituted “, (3) or (5)”.

(4) Section 110, in its application by virtue of sub-paragraph (2), has effect as
if—

(a) the modifications in sub-paragraph (3) were made,

(b) 30in subsection (4), for the words “the publication of the report of the
Commission on the reference concerned” there were substituted “the
relevant day”, and

(c) after that subsection there were inserted—

(4A) The relevant day for the purposes of subsection (4) is—

(a) 35the day on which the Commission published a notice
under paragraph 8(12) of Schedule 10 to the Health
and Social Care Act 2012 in connection with the
reference concerned, or

(b) if it has not given a direction under paragraph 8(1) of
40that Schedule in connection with the reference and
within the permitted period, the latest day on which
it was possible to give such a notice within that
period.

(5) Section 111, in its application by virtue of sub-paragraph (1) or (2), has effect
45as if—

(a) in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b) in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

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(6) Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (1), has
effect as if—

(a) for the words from “published (or, in the case of a report under
section 50 or 65, given)” there were substituted “made”,

(b) 5for the words “published (or given)”, in each place they appear, there
were substituted “made”, and

(c) the words “by this Part” were omitted.

(7) Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (2), has
effect as if for sub-paragraph (ii) there were substituted—

(ii) 10if earlier, the relevant day (which for the purposes of
this subsection is to be construed in accordance with
section 110(4A)).

(8) Section 112, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(9) 15Section 114, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(10) Section 115, in its application by virtue of sub-paragraph (1) or (2), has effect
as if for “or (3)” there were substituted “, (3) or (5)”.

(11) Section 116, in its application by virtue of sub-paragraph (1) or (2), has effect
20as if, in subsection (2), for “or (3)” there were substituted “, (3) or (5)”.

(12) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular,
provisions relating to the making of orders) have effect for the purposes of
the application of those sections by virtue of sub-paragraph (1) or (2) in
25relation to those sections as applied by virtue of the sub-paragraph
concerned.

(13) Accordingly, corresponding provisions of this Act do not have effect in
relation to those sections as applied by virtue of the sub-paragraph
concerned.

Section 107

30SCHEDULE 11 Further provision about enforcement powers

Part 1 Discretionary requirements

Procedure

1 (1) 35Where Monitor proposes to impose a discretionary requirement on a person,
Monitor must give notice to that person (a “notice of intent”).

(2) A notice of intent must—

(a) state that Monitor proposes to impose the discretionary requirement
and set out its effect,

(b) 40set out the grounds for the proposal to impose the requirement,

(c) explain the effect of section 106 (enforcement undertakings),

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(d) set out the circumstances (if any) in which Monitor may not impose
the requirement, and

(e) specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.

(3) 5The notice period must be not less than 28 days beginning with the day after
that on which the notice of intent is received.

(4) But where Monitor—

(a) proposes to impose a compliance requirement or restoration
requirement, and

(b) 10considers that a shorter notice period is necessary to prevent or
minimise further breaches of the kind referred to in section 105(1),

the notice period is to be such shorter period as Monitor may determine, but
not less than 5 days beginning with the day after that on which the notice of
intent is received.

2 (1) 15After the end of the notice period Monitor must decide whether to—

(a) impose the discretionary requirement, with or without
modifications, or

(b) impose any other discretionary requirement.

(2) Where Monitor decides under sub-paragraph (1) to impose a discretionary
20requirement on a person Monitor must give notice to that person (a “final
notice”).

(3) A final notice must—

(a) state that Monitor has decided to impose the discretionary
requirement and set out its effect,

(b) 25set out the grounds for imposing the requirement,

(c) in the case of a variable monetary penalty, state—

(i) how payment may be made,

(ii) the period (“the payment period”) within which payment
must be made,

(iii) 30any discount applicable for early payment of the penalty, and

(iv) the rate of interest payable for late payment of the penalty,

(d) set out the consequences of failing to comply with the requirement,
and

(e) explain the right of appeal conferred by paragraph 3.

(4) 35The payment period must be not less than 28 days beginning with the day
after that on which the final notice is received.

(5) Monitor must not decide under sub-paragraph (1) to impose a variable
monetary penalty unless the notice of intent was given before the end of the
period of 5 years beginning with the day (or, in the case of a continuing
40breach, the last day) on which the breach giving rise to the imposition of the
discretionary requirement occurred.

3 (1) A person may appeal to the First-tier Tribunal against a decision of Monitor
to impose a discretionary requirement.

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

(a) 45that the decision was based on an error of fact,

(b) that the decision was wrong in law,

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(c) in the case of a decision imposing a variable monetary penalty, that
the amount of the penalty is unreasonable,

(d) in the case of a decision to impose a compliance requirement or a
restoration requirement, that the nature of the requirement is
5unreasonable, or

(e) that the decision was unreasonable for any other reason.

(3) The discretionary requirement is suspended pending determination of the
appeal.

(4) On an appeal under this paragraph, the Tribunal may—

(a) 10confirm, vary or withdraw the discretionary requirement,

(b) take such steps as Monitor could take in relation to the breach giving
rise to the imposition of the requirement, or

(c) remit the decision whether to confirm the requirement, or any matter
relating to that decision, to Monitor.

4 15Monitor may by notice to a person on whom a discretionary requirement has
been imposed—

(a) withdraw the discretionary requirement,

(b) in the case of a variable monetary penalty, reduce the amount of the
penalty or extend the payment period, or

(c) 20in the case of a compliance requirement or a restoration requirement,
extend the period specified for taking the steps specified in the
requirement.

Non-compliance penalties

5 (1) If a person fails to comply with a compliance requirement or a restoration
25requirement Monitor may impose a monetary penalty on that person of such
amount as Monitor may determine (a “non-compliance penalty”).

(2) Where Monitor proposes to impose a non-compliance penalty on a person
Monitor must give notice to that person (a “non-compliance notice”).

(3) A non-compliance notice must—

(a) 30specify the amount of the non-compliance penalty,

(b) set out the grounds for imposing the penalty,

(c) state how payment of the penalty may be made,

(d) state the period (“the payment period”) within which payment must
be made,

(e) 35state any discount applicable for early payment of the penalty,

(f) set out the consequences of a failure to pay within the payment
period (including any increase in the amount payable), and

(g) explain the right of appeal conferred by paragraph 6.

(4) The payment period must be not less than 28 days beginning with the day
40after that on which the non-compliance notice is received.

(5) If the whole or any part of a non-compliance penalty is not paid by the time
it is required to be paid Monitor may increase the amount payable by no
more than 50% of the amount of the penalty.

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(6) Monitor may by notice to a person on whom a non-compliance penalty has
been imposed reduce the amount of the penalty or extend the payment
period.

6 (1) A person may appeal to the First-tier Tribunal against a decision of Monitor
5to impose a non-compliance penalty.

(2) The grounds for such an appeal are—

(a) that the decision was based on an error of fact,

(b) that the decision was wrong in law, or

(c) that the decision was, or the amount of the penalty is, unfair or
10unreasonable.

(3) The non-compliance penalty is suspended pending determination of the
appeal.

(4) On an appeal, the Tribunal may—

(a) confirm, vary or withdraw the non-compliance penalty, or

(b) 15remit the decision whether to confirm the penalty, or any matter
relating to that decision, to Monitor.

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
20method of recovery).

(2) The 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 25Monitor must pay any sums it receives in respect of any of the following into
the Consolidated Fund—

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

(b) a non-compliance penalty.

Part 2 30Enforcement undertakings

Procedure

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
35the procedure as revised.

(3) Monitor 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.