Health and Social Care Bill

Session 2010 - 12
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Schedule 12 — Procedure on references under section 120
395

(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)
The 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
5
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
normal requirements, it may (on one occasion only) extend that period by
not more than 20 working days.
10
      (3)
The Competition Commission must ensure that an extension under sub-
paragraph (2) is notified to—
(a)
Monitor,
(b)
the National Health Service Commissioning Board, and
(c)
every objector who made representations in accordance with
15
paragraph 2.
Matters to be considered on determination
5     (1)
If the group with the function of determining a reference considers it
necessary 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
20
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
25
(b)
all matters raised by Monitor in replies under paragraph 2 that it did
not 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.
30
      (2)
The power to require the production of a document is a power to require its
production—
(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
35
it under this paragraph.
Oral 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.
40
      (2)
A group with that function may administer oaths for the purposes of this
Schedule.

Health and Social Care Bill
Schedule 12 — Procedure on references under section 120
396

      (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)
to attend at a time and place specified in the notice, and
5
(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)
A person comes within this sub-paragraph if the person is—
10
(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)
a person attending the hearing as a representative of Monitor.
15
      (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
requirement under sub-paragraph (5)—
20
(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
25
than 10 miles from that person’s place of residence, the Competition
Commission 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
30
function of making a determination on a reference under section 120.
      (2)
The 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.
35
      (4)
In this paragraph and paragraph 9, “statement of truth” means a statement
that 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”)—
40
(a)
fails to comply with a notice or other requirement under paragraph
6, 7 or 8,
(b)
in complying with a notice under paragraph 8, makes a statement
that is false in a material particular, or

Health and Social Care Bill
Schedule 12 — Procedure on references under section 120
397

(c)
in providing information otherwise verified in accordance with a
statement of truth required by rules under paragraph 11, provides
information 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.
5
      (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
defaulter 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
10
of contempt of court.
General provisions relating to evidence
10    (1)
No 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.
15
      (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.
20
      (2)
Those rules may include provision supplementing the provisions of this
Schedule 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
25
(b)
the making of representations at an oral hearing.
      (3)
The 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
30
such persons as it considers appropriate.
      (6)
Rules 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
35
costs incurred by the Commission in connection with the reference.
      (2)
Where 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
40
as are specified in the order.

Health and Social Care Bill
Schedule 13 — Part 3: minor and consequential amendments
398

      (4)
Where 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
5
other 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.
10
      (7)
Sums 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
15
Schedule as the period within which something must be done.
Schedule 13
Section 150

Part 3: minor and consequential amendments
General
1     (1)
Any reference in an instrument or document to the Independent Regulator
20
of NHS Foundation Trusts is to be read, in relation to any time after the
commencement of section 61, 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.
25
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)
30
3     (1)
In 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
35
Trusts.
      (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).

Health and Social Care Bill
Schedule 13 — Part 3: minor and consequential amendments
399

Superannuation Act 1972 (c. 11)
4     (1)
In 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
5
Health and Social Care (Community Health and Standards) 2003 (which
inserted the entry in question).
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)—
10
(a)
at the appropriate place insert—
    “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
15
18 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).
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)—
20
(a)
at the appropriate place insert—
    “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
25
19 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).
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)—
30
(a)
at the appropriate place insert—
    “Monitor.”, and
(b)
omit the entry for the Independent Regulator of NHS Foundation
Trusts.
National Health Service Act 2006 (c. 41)
35
8
The National Health Service Act 2006 is amended as follows.
9     (1)
Omit 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).
40
10    (1)
Omit section 32 (general duty of regulator).

Health and Social Care Bill
Schedule 13 — Part 3: minor and consequential amendments
400

      (2)
Despite that repeal, that section is to continue, pending the commencement
of section 179 (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,”.
5
12
In 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)
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
10
authority), for “the Independent Regulator of NHS Foundation Trusts”
substitute “Monitor”.
Health and Social Care Act 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
15
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
In section 39(1) (notice requirements in relation to certain matters), for
20
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
Monitor,”.
25
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
Chapter 3 of Part 3 of the Health and Social Care Act 2012.”
30
Health Act 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;”.
Equality Act 2010 (c.15)
35
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”.