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.

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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,

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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.

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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.

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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

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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,

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(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

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(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

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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

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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

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(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

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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

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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

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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

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(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

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      (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.

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     (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.

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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),

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(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

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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

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may impose a penalty in accordance with section 111.”, and

 
 

 
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