Health and Social Care Bill

Session 2010 - 12
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Health and Social Care Bill

Health and Social Care Bill
Schedule 9 — Requirements under section 75: undertakings
381

Seal and evidence
23    (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
5
signed on its behalf must be received in evidence and, unless the contrary is
proved, taken to be so executed or signed.
Status
24    (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.
10
      (2)
Monitor’s property must not be regarded as property of, or property held on
behalf of, the Crown.
Schedule 9
Section 77

Requirements under section 75: undertakings
Procedure
15
1     (1)
Monitor must publish a procedure for entering into section 77 undertakings.
      (2)
Monitor 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.
20
2     (1)
Where Monitor accepts a section 77 undertaking, Monitor must publish the
undertaking.
      (2)
But Monitor must not under sub-paragraph (1) publish any part of a section
77 undertaking which contains information which it is satisfied is—
(a)
commercial information the disclosure of which would, or might,
25
significantly 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.
30
Variation of terms
3
The terms of a section 77 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.
35

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
382

Compliance certificates
4     (1)
Where Monitor is satisfied that a section 77 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 77 undertaking may at any time make an
5
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
10
days beginning with the day after that on which the application is received.
5     (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,
15
(b)
wrong 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
20
6
Where Monitor is satisfied that a person who has given a section 77
undertaking 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
25
(b)
if Monitor decides so to treat the person, Monitor must by notice
revoke any certificate of compliance given to that person.
Schedule 10
Sections 101 and 142

References by Monitor to the Competition Commission
Variation of reference
30
1     (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)
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
35
effect to the variation.

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
383

Monitor’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
5
the 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
10
3
As 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.
15
Information
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—
(a)
such information in Monitor’s possession as relates to matters within
20
the scope of the investigation or the carrying out of the function
and—
(i)
is requested by the Commission for that purpose, or
(ii)
is information which Monitor considers it would be
appropriate for that purpose to give to the Commission
25
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)
The 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
30
purpose under sub-paragraph (1).
Time limits
5     (1)
A reference must specify a period within which the Competition
Commission must make a report on the reference.
      (2)
A period specified for the purposes of sub-paragraph (1) must not be longer
35
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
made before the end of—
(a)
the period specified in the reference, or
40
(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

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
384

the 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
5
notice 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
10
the 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,
15
must 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
20
could remedy or prevent those effects.
      (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
25
1998.
      (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.
30
      (5)
On 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
35
must 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
40
the 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,

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
385

(c)
includes conclusions to the effect that those effects could be
remedied or prevented by changes to the matters specified in the
reference, and
(d)
specifies changes by which those effects could be remedied or
prevented.
5
      (2)
Monitor must make such changes to the matters specified in the reference as
it 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.
10
      (4)
Before making changes under this paragraph, Monitor must send a notice—
(a)
stating 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
15
the changes may be made.
      (5)
A 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.
20
      (7)
Monitor must also publish the notice.
      (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
25
adverse 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
30
period 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
35
direction.
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—
40
(a)
not 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).

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
386

      (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-
paragraph (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
5
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
one 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—
10
(a)
must give notice specifying the changes proposed by Monitor, the
terms of the direction and the reasons for giving it, and
(b)
must 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).
15
      (6)
The effects mentioned in sub-paragraph (5)(b) are—
(a)
in the case of a direction under sub-paragraph (1)(a), the adverse
effects 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
20
adverse effects as are not remedied or prevented by the changes
made by Monitor under paragraph 7(11).
      (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.
25
      (8)
Before making changes under sub-paragraph (5)(b), the Commission must
send 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
30
changes may be made.
      (9)
The 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.
35
     (11)
The Commission must also publish the notice.
     (12)
After 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.
40
Disclosure etc.
9     (1)
Before 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.

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
387

      (2)
The first consideration is the need to exclude from disclosure (so far as
practicable) any information the disclosure of which the Commission
considers is contrary to the public interest.
      (3)
The second consideration is the need to exclude from disclosure (so far as
practicable)—
5
(a)
commercial information the disclosure of which the Commission
considers would or might significantly harm the legitimate business
interests 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
10
harm the individual’s interests.
      (4)
The third consideration is the extent to which the disclosure of the
information 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
15
attaches to the report or notice.
Powers of investigation
10    (1)
The 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
20
that Part—
(a)
section 109 (attendance of witnesses and production of documents),
(b)
section 110 (enforcement of powers under section 109: general),
(c)
section 111 (penalties),
(d)
section 112 (penalties: main procedural requirements),
25
(e)
section 113 (payments and interest by instalments),
(f)
section 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),
30
and
(j)
section 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
35
Competition Commission in the exercise of its functions under paragraph 8,
as 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—
40
(a)
subsection (2) were omitted,
(b)
for 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
45
may impose a penalty in accordance with section 111.”, and