(2) But Monitor must not under sub-paragraph (1) publish any part of an
enforcement undertaking which contains information which it is satisfied
is—

(a) commercial information the disclosure of which would, or might,
5significantly harm the legitimate business interests of the person to
whom it relates;

(b) information relating to the private affairs of an individual the
disclosure of which would, or might, significantly harm that
person’s interests.

10Variation of terms

11 The terms of an enforcement 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.

15Compliance certificates

12 (1) Where Monitor is satisfied that an enforcement 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 an enforcement undertaking may at any time make
20an 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
25days 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 was—

(a) based on an error of fact,

(b) 30wrong 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.

Inaccurate, incomplete or misleading information

14 35Where 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) 40if Monitor decides so to treat the person, Monitor must by notice
revoke any compliance certificate given to that person.

Section 120

SCHEDULE 12 Procedure on references under section 120

Contents etc. of reference

1 (1) A reference under section 120 must specify—

(a) 5Monitor’s reasons for proposing the method to which the reference
relates, and

(b) its representations as to why the grounds referred to in section 121(4)
do not apply.

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

(a) 10the National Health Service Commissioning Board, and

(b) each objector.

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

(4) In this Schedule, “objector” means—

(a) in relation to a reference made where the condition in section
15120(2)(a) is not met, each clinical commissioning group who objected
to the proposed method to which the reference relates, and

(b) in relation to a reference made where the condition in section
120(2)(b) or (c) is not met, each licence holder who objected to that
proposed method.

20Representations 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
25notice 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) 30Monitor 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) a Saturday or a Sunday,

(b) Christmas Day or Good Friday, or

(c) 35a 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
40selected for the purpose by the Chairman of the Commission—

(a) considering a reference under section 120;

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

(3) 5The 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
to replace a person as a member of group if—

(a) the person being replaced has ceased to be a member of the
10Commission,

(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
group, or

(c) it appears to the Chairman that it is inappropriate, because of a
15particular 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
continuing after the replacement with anything begun before it.

(6) The Chairman of the Commission may be appointed as, or may be selected
20to 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) at least two members of the group are in favour of it.

Timetable for determination on reference

4 (1) 25The 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
30normal requirements, it may (on one occasion only) extend that period by
not more than 20 working days.

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

(a) Monitor,

(b) 35the National Health Service Commissioning Board, and

(c) every 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
40necessary to disregard the matters referred to in sub-paragraph (2) in order
to 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
section 118, and

(b) all matters raised by Monitor in replies under paragraph 2 that it did
5not include in the reference.

Production of documents

6 (1) The Competition Commission may by notice require a person to produce to
it 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
10production—

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

(b) in a legible form.

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

15Oral 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
determination on a reference under section 120.

(2) A group with that function may administer oaths for the purposes of this
20Schedule.

(3) The Competition Commission must give notice to each objector who has
made representations in accordance with paragraph 2 of the time and place
at which an oral hearing is to be held.

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

(a) 25to attend at a time and place specified in the notice, and

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

(5) At an oral hearing, the group conducting the hearing may require a person
who comes within sub-paragraph (6), if present at the hearing, to give
evidence or to make representations.

(6) 30A person comes within this sub-paragraph if the person is—

(a) an 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) 35a person attending the hearing as a representative of Monitor.

(7) A person who gives oral evidence at the hearing may be cross-examined by
or on behalf of any other person who is present at the hearing and comes
within sub-paragraph (6).

(8) If a person is not present at a hearing and so cannot be made subject to a
40requirement under sub-paragraph (5)—

(a) the Competition Commission is not obliged to require the person to
attend the hearing, and

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

(9) Where a person is required under this paragraph to attend at a place more
than 10 miles from that person’s place of residence, the Competition
5Commission 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
function of making a determination on a reference under section 120.

(2) 10The 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) In this paragraph and paragraph 9, “statement of truth” means a statement
15that 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) fails to comply with a notice or other requirement under paragraph
206, 7 or 8,

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

(c) in providing information otherwise verified in accordance with a
statement of truth required by rules under paragraph 11, provides
25information 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
30defaulter 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
of contempt of court.

General provisions relating to evidence

10 (1) 35No 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) A 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 120.

(2) Those rules may include provision supplementing the provisions of this
5Schedule 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) the making of representations at an oral hearing.

(3) 10The 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
such persons as it considers appropriate.

(6) 15Rules under this paragraph may make different provision for different cases.

Costs

12 (1) A group that makes a determination on a reference under section 120 must
make an order requiring the payment to the Competition Commission of the
costs incurred by the Commission in connection with the reference.

(2) 20Where 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
as are specified in the order.

(4) 25Where 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 120 may
also make an order requiring Monitor or an objector who made
representations in accordance with paragraph 2 to make payments to the
30other 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) 35Sums required to be paid by an order under this paragraph but not paid
within 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
40Schedule as the period within which something must be done.

Section 149

SCHEDULE 13 Part 3: minor and consequential amendments

General

1 (1) Any reference in an instrument or document to the Independent Regulator
5of NHS Foundation Trusts is to be read, in relation to any time after the
commencement of section 60, 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.

10Public Bodies (Admission to Meetings) Act 1960 (c. 67)Public Bodies (Admission to Meetings) Act 1960 (c. 67)

2 In 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) 15In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
subject to investigation)—

(a) at the appropriate place insert—

• “ Monitor.”, and

(b) omit the entry for the Independent Regulator of NHS Foundation
20Trusts.

(2) In 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) 25In Schedule 1 to the Superannuation Act 1972 (kinds of employment to
which 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
30inserted the entry in question).

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

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

(a) at the appropriate place insert—

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

(b) omit the entry for the Chairman and other members of the
Independent 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
40Standards) 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) In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (other disqualifying offices)—

(a) at the appropriate place insert—

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

(b) omit the entry for the Chairman and other members of the
Independent 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
10Standards) Act 2003 (which inserted the entry in question).

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

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

(a) at the appropriate place insert—

• 15“ Monitor.”, and

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

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) 20Omit section 31 and Schedule 8 (continuation and constitution of the
Independent Regulator of NHS Foundation Trusts).

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

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

(2) 25Despite that repeal, that section is to continue, pending the commencement
of section 178 (abolition of NHS trusts in England) to have effect so far as
necessary 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 30In section 276 (index of defined expressions), in the entry for “the regulator”,
for “section 31(1)” substitute “section 275(1)”.

National 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
35authority), for “the Independent Regulator of NHS Foundation Trusts”
substitute “Monitor”.

Health 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
who holds a licence under Chapter 3 of Part 3 of the Health
and Social Care Act 2012, to Monitor,”.

16 5In 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
of the activity is a person who holds a licence under Chapter
3 of Part 3 of the Health and Social Care Act 2012, to
10Monitor,”.

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

“(2) The Secretary of State must consult Monitor before making provision
under subsection (1) in relation to persons who hold licences under
15Chapter 3 of Part 3 of the Health and Social Care Act 2012.”

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
Constitution), for paragraph (f) substitute—

“(f) Monitor;”.

20Equality Act 2010 (c.15)2010 (c.15)

19 In Part 1 of Schedule 19 to the Equality Act 2010 (bodies subject to public
sector equality duty), for the entry for the Independent Regulator of NHS
Foundation Trusts substitute “Monitor”.

Section 178

SCHEDULE 14 25Abolition of NHS trusts in England: consequential amendments

Part 1 Amendments 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
30paragraph 15 of Schedule 4 (NHS trusts)”.

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

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

5 In section 40 (power of Secretary of State to give financial assistance to NHS
35foundation 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
Secretary 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
5foundation 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 (4A)(b), “another party” means any party to the
10agreement 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 178 of the Health and Social Care Act 2012.”

7 15In section 51 (trust funds and trustees), omit subsection (4).

8 In section 56 (mergers of NHS foundation trusts)—

(a) in subsection (1)(b) (as amended by section 167(1)(a)), omit “or an
NHS trust established under section 25”, and

(b) in subsection (1A) (as inserted by section 167(2)), omit “(that is an
20NHS foundation trust)”.

9 In section 56A (acquisitions of NHS foundation trusts) (as inserted by
section 168)—

(a) in subsection (1)(b), omit “or an NHS trust established under section
25”,

(b) 25in subsection (2), omit “(that is an NHS foundation trust)”, and

(c) in subsection (3), omit paragraph (a) (and the following “and”).

10 In section 57 (mergers, acquisitions and separation of NHS foundation
trusts) (as amended by sections 171 and 172(2)(a))—

(a) in subsection (3)(a), omit “, an NHS trust established under section
3025”,

(b) in subsection (4), omit “or an NHS trust established under section
25”, and

(c) omit subsection (5).

11 In section 65(1) (interpretation for provisions about NHS foundation trusts),
35in 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 (1) Omit section 65B (appointment of trust special administrator in relation to
NHS trust).

(2) 40In consequence of that repeal, omit section 173(2) of this Act.

14 Omit section 65C (suspension of directors of NHS trust).

15 (1) Section 65F (special administrator’s draft report) is amended as follows.

(2) In subsection (1), for “the Secretary of State”, in each place it appears,
substitute “the regulator”.