Health and Social Care Bill (HL Bill 132)

Section 25(2)

SCHEDULE 2 Clinical commissioning groups

Sections 14B(6), 14D(2) and 14I(4)

“Schedule 1 Clinical commissioning groups

5Part 1 Constitution of clinical commissioning groups

General

1 A clinical commissioning group must have a constitution.

2 (1) The constitution must specify—

(a) 10the name of the clinical commissioning group,

(b) the members of the group, and

(c) the area of the group.

(2) The name of the group must comply with such requirements as
may be prescribed.

3 (1) 15The constitution must specify the arrangements made by the
clinical commissioning group for the discharge of its functions
(including its functions in determining the terms and conditions of
its employees).

(2) The arrangements may include provision—

(a) 20for the appointment of committees or sub-committees of
the clinical commissioning group, and

(b) for any such committees to consist of or include persons
other than members or employees of the clinical
commissioning group.

(3) 25The arrangements may include provision for any functions of the
clinical commissioning group to be exercised on its behalf by—

(a) any of its members or employees,

(b) its governing body, or

(c) a committee or sub-committee of the group.

4 (1) 30The constitution must specify the procedure to be followed by the
clinical commissioning group in making decisions.

(2) The constitution must also specify the arrangements made by the
clinical commissioning group for securing that there is
transparency about the decisions of the group and the manner in
35which they are made.

5 The constitution must specify the arrangements made by the
clinical commissioning group for discharging its duties under
section 14O(1) to (4).

6 The provision made by virtue of paragraphs 3 and 4 must secure
40that there is effective participation by each member of the clinical
commissioning group in the exercise of the group’s functions.

Governing bodies of clinical commissioning groups

7 (1) The constitution must specify the arrangements made by the
clinical commissioning group for the discharge of the functions of
its governing body.

(2) 5The arrangements—

(a) must include provision for the appointment of the audit
committee and remuneration committee of the governing
body, and

(b) may include provision for the appointment of other
10committees or sub-committees of the governing body.

(3) Arrangements under sub-paragraph (2)(a) may include provision
for the audit committee to include individuals who are not
members of the governing body.

(4) Arrangements under sub-paragraph (2)(b) may include provision
15for a committee or sub-committee to include individuals who are
not members of the governing body but are—

(a) members of the clinical commissioning group, or

(b) individuals of a description specified in the constitution.

(5) The arrangements may include provision for any functions of the
20governing body to be exercised on its behalf by—

(a) any committee or sub-committee of the governing body,

(b) a member of the governing body,

(c) a member of the clinical commissioning group who is an
individual (but is not a member of the governing body), or

(d) 25an individual of a description specified in the constitution.

(6) In this paragraph, references to the functions of the governing
body of a clinical commissioning group include references to the
functions of the clinical commissioning group which are
exercisable by the governing body under arrangements specified
30in the constitution by virtue of paragraph 3(3).

8 (1) The constitution must specify the procedure to be followed by the
governing body in making decisions.

(2) The constitution must also specify the arrangements made by the
clinical commissioning group for securing that there is
35transparency about the decisions of the governing body and the
manner in which they are made.

(3) The provision made under sub-paragraph (2) must include
provision for meetings of governing bodies to be open to the
public, except where the clinical commissioning group considers
40that it would not be in the public interest to permit members of the
public to attend a meeting or part of a meeting.

Supplemental

9 In addition to the provision authorised or required to be included
under this Part of this Schedule, the constitution may make further
45provision.

Part 2 Further provision about clinical commissioning groups

Status

10 (1) A clinical commissioning group is a body corporate.

(2) 5A clinical commissioning group is not to be regarded as a servant
or agent of the Crown or as enjoying any status, privilege or
immunity of the Crown.

(3) The property of a clinical commissioning group is not to be
regarded as property of, or property held on behalf of, the Crown.

10Staff

11 (1) A clinical commissioning group may appoint such persons to be
employees of the group as it considers appropriate.

(2) A clinical commissioning group must—

(a) pay its employees remuneration and travelling or other
15allowances in accordance with determinations made by its
governing body under section 14L(3)(a), and

(b) employ them on such other terms and conditions as it may
determine.

(3) A clinical commissioning group may, for or in respect of such of
20its employees as it may determine, make arrangements for
providing pensions, allowances or gratuities.

(4) Such arrangements may include the establishment and
administration, by the clinical commissioning group or otherwise,
of one or more pension schemes.

(5) 25The arrangements that may be made under sub-paragraph (3)
include arrangements for the provision of pensions, allowances or
gratuities by way of compensation to or in respect of any of the
clinical commissioning group’s employees who suffer loss of
office or employment or loss or diminution of emoluments.

30Accountable officer

12 (1) A clinical commissioning group must have an accountable officer.

(2) The accountable officer is to be appointed by the Board.

(3) The Board may appoint a person to be the accountable officer for
more than one clinical commissioning group (and in the following
35provisions of this paragraph such an appointment is referred to as
a “joint appointment”).

(4) The accountable officer may be—

(a) an individual who is a member of the clinical
commissioning group or of any body that is a member of
40the group or, in the case of a joint appointment, an
individual who is a member of any of the groups in

question or of any body that is a member of any of those
groups, or

(b) an employee of the group or of any member of the group
or, in the case of a joint appointment, an employee of any
5of the groups in question or of any member of those
groups.

(6) A clinical commissioning group may, for or in respect of its
accountable officer, make arrangements for providing pensions,
15allowances or gratuities.

(7) The arrangements that may be made under sub-paragraph (6)
include arrangements for the provision of pensions, allowances or
gratuities by way of compensation to or in respect of the
accountable officer where the officer suffers loss of office or loss or
20diminution of emoluments.

(8) Where a clinical commissioning group has, by virtue of paragraph
11(4), established a pension scheme, the arrangements that may be
made under sub-paragraph (6) include arrangements for the
accountable officer to be a member of the scheme.

(9) 25The accountable officer is responsible for ensuring that the clinical
commissioning group or, in the case of a joint appointment, each
of the groups in question—

(a) complies with its obligations under—

(i) sections 14Q and 14R,

(ii) 30sections 223H to 223J,

(iii) paragraphs 17 to 19 of this Schedule, and

(iv) any other provision of this Act specified in a
document published by the Board for the purposes
of this sub-paragraph, and

(b) 35exercises its functions in a way which provides good value
for money.

Remuneration etc for members of governing bodies

13 (1) A clinical commissioning group may pay members of its
governing body such remuneration and travelling or other
40allowances as it considers appropriate.

(2) A clinical commissioning group may, for or in respect of such
members of its governing body as it may determine, make
arrangements for providing pensions, allowances or gratuities.

(3) Such arrangements may include the establishment and
45administration, by the clinical commissioning group or otherwise,
of one or more pension schemes.

(4) The arrangements that may be made under sub-paragraph (2)
include arrangements for the provision of pensions, allowances or
gratuities by way of compensation to or in respect of any members
of the governing body who suffer loss or diminution of
5emoluments.

(5) Where a clinical commissioning group has, by virtue of paragraph
11(4), established a pension scheme, the arrangements that may be
made under sub-paragraph (2) include arrangements for members
of the governing body to be members of the scheme.

(6) 10Sub-paragraph (2) does not apply to members of the governing
body who are—

(a) members or employees of the clinical commissioning
group, or

(b) members or employees of a body that is a member of the
15clinical commissioning group.

Additional powers in respect of payment of allowances

14 A clinical commissioning group may pay such travelling or other
allowances as it considers appropriate to any of the following—

(a) members of the clinical commissioning group who are
20individuals;

(b) individuals authorised to act on behalf of a member of the
clinical commissioning group in dealings between the
member and the group;

(c) members of any committee or sub-committee of the
25clinical commissioning group or its governing body.

Trust funds and trustees

15 (1) The Secretary of State may by order provide for the appointment
of trustees for a clinical commissioning group to hold property on
trust—

(a) 30for the general or any specific purposes of the group, or

(b) for any purposes relating to the health service in England.

(2) An order under sub-paragraph (1) may—

(a) make provision as to the persons by whom trustees must
be appointed and generally as to the method of their
35appointment,

(b) make any appointment subject to such conditions as may
be specified in the order (including conditions requiring
the consent of the Secretary of State),

(c) make provision as to the number of trustees to be
40appointed, including provision under which that number
may from time to time be determined by the Secretary of
State after consultation with such persons as the Secretary
of State considers appropriate, and

(d) make provision with respect to the term of office of any
45trustee and his or her removal from office.

(3) Where trustees have been appointed by virtue of sub-paragraph
(1), the Secretary of State may by order provide for the transfer of

any trust property from the clinical commissioning group to the
trustees.

Externally financed development agreements

16 (1) The powers of a clinical commissioning group include power to
5enter into externally financed development agreements.

(2) For the purposes of this paragraph, an agreement is an externally
financed agreement if it is certified as such in writing by the
Secretary of State.

(3) The Secretary of State may give a certificate under this paragraph
10if—

(a) in the Secretary of State’s opinion the purpose or main
purpose of the agreement is the provision of services or
facilities in connection with the discharge by a clinical
commissioning group of any of its functions, and

(b) 15a person proposes to make a loan to, or provide any other
form of finance for, another party in connection with the
agreement.

(4) If a clinical commissioning group enters into an externally
financed development agreement it may also, in connection with
20that agreement, enter into an agreement with a person who falls
within sub-paragraph (3)(b) in relation to the externally financed
development agreement.

(5) In sub-paragraph (3)(b) “another party” means any party to the
agreement other than the clinical commissioning group.

(6) 25The fact that an agreement made by a clinical commissioning
group has not been certified under this paragraph does not affect
its validity.

Accounts and audits

17 (1) A clinical commissioning group must keep proper accounts and
30proper records in relation to the accounts.

(2) A clinical commissioning group must prepare annual accounts in
respect of each financial year.

(3) The Board may, with the approval of the Secretary of State, direct
a clinical commissioning group to prepare accounts in respect of
35such period or periods as may be specified in the direction.

(4) The Board may, with the approval of the Secretary of State, give
directions to a clinical commissioning group as to—

(a) the methods and principles according to which its annual
or other accounts must be prepared, and

(b) 40the form and content of such accounts.

(5) The annual accounts and, if the Board so directs, accounts
prepared by virtue of sub-paragraph (3) must be audited in
accordance with the Audit Commission Act 1998 by an auditor or

auditors appointed in accordance with arrangements made by the
Board for the purposes of this paragraph.

(6) The Comptroller and Auditor General may examine—

(a) the annual accounts and any records relating to them, and

(b) 5any report on them by the auditor or auditors.

(7) A clinical commissioning group must send its audited annual
accounts, and any audited accounts prepared by it by virtue of
sub-paragraph (3), to the Board by no later than the date specified
in a direction by the Board.

(8) 10The Board may direct a clinical commissioning group to send its
unaudited annual accounts, and any unaudited accounts
prepared by it by virtue of sub-paragraph (3), to the Board by no
later than the date specified in a direction by the Board.

(9) For the purposes of this paragraph “financial year” includes the
15period which begins on the day the clinical commissioning group
is established and ends on the following 31 March.

Provision of financial information to Board

18 (1) The Board may direct a clinical commissioning group to supply it
with such information relating to its accounts or to its income or
20expenditure, or its use of resources, as may be specified in the
direction.

(2) The power conferred by sub-paragraph (1) includes power to
direct a clinical commissioning group to supply the Board with—

(a) estimates of its future income or expenditure or its future
25use of resources;

(b) any information which the Board considers is necessary to
enable it to verify any other information supplied to it
under sub-paragraph (1).

(3) A clinical commissioning group must supply the Board with any
30information specified in a direction under sub-paragraph (1)
within such period as may be specified in the direction.

(4) In this paragraph, a reference to the use of resources is a reference
to their expenditure, consumption or reduction in value.

Provision of information required by the Secretary of State

19 (1) 35The Secretary of State may require each clinical commissioning
group to provide the Board with such information as the Secretary
of State considers it necessary to have for the purposes of the
functions of the Secretary of State in relation to the health service.

(2) The information must be provided in such form, and at such time
40or within such period, as the Secretary of State may require.

(3) The powers conferred by this paragraph must be exercised in the
same way in relation to each clinical commissioning group.

(4) The Board must give any information obtained by it under sub-
paragraph (1) to the Secretary of State, in such form, and at such
time or within such period, as the Secretary of State may require.

Incidental powers

20 5The power conferred on a clinical commissioning group by section
2 includes, in particular, power to—

(a) enter into agreements,

(b) acquire and dispose of property, and

(c) accept gifts (including property to be held on trust for the
10purposes of the clinical commissioning group).

Seal and evidence

21 (1) The application of a clinical commissioning group’s seal must be
authenticated by the signature of any person who has been
authorised (generally or specially) for that purpose.

(2) 15Any instrument which, if executed by an individual, would not
need to be under seal may be executed on behalf of a clinical
commissioning group by any person who has been authorised
(generally or specially) for that purpose.

(3) A document purporting to be duly executed under a clinical
20commissioning group’s seal or to be signed on its behalf must be
received in evidence and, unless the contrary is proven, taken to
be so executed or signed.

Part 3 Transfer schemes

22 25The things that may be transferred under a property transfer
scheme or a staff transfer scheme under section 14I include—

(a) property, rights and liabilities that could not otherwise be
transferred;

(b) property acquired, and rights and liabilities arising, after
30the making of the scheme;

(c) criminal liabilities.

23 A property transfer scheme or a staff transfer scheme may make
supplementary, incidental, transitional and consequential
provision and may in particular—

(a) 35create rights, or impose liabilities, in relation to property or
rights transferred;

(b) make provision about the continuing effect of things done
by the transferor in respect of anything transferred;

(c) make provision about the continuation of things
40(including legal proceedings) in the process of being done
by, on behalf of or in relation to the transferor in respect of
anything transferred;

(d) make provision for references to the transferor in an
instrument or other document in respect of anything
transferred to be treated as references to the transferee.

24 A property transfer scheme may make provision for the shared
5ownership or use of property.

25 A staff transfer scheme may make provision which is the same or
similar to the Transfer of Undertakings (Protection of
Employment) Regulations 2006 (SI 2006/246SI 2006/246).

26 A property transfer scheme or a staff transfer scheme may
10provide—

(a) for the scheme to be modified by agreement after it comes
into effect, and

(b) for any such modifications to have effect from the date
when the original scheme comes into effect.”

Section 51

15SCHEDULE 3 Pharmaceutical remuneration

Section 165A

“Schedule 1 Pharmaceutical remuneration

Interpretation

1 20In this Schedule—

(a) “drugs” includes medicines and listed appliances (within
the meaning of section 126), and

(b) “pharmaceutical remuneration” means remuneration paid
by the Board to persons providing pharmaceutical services
25or local pharmaceutical services.

Pharmaceutical remuneration to be apportioned among clinical commissioning groups

2 (1) The Board must determine the elements of pharmaceutical
remuneration in respect of which apportionments are to be made
in relation to a financial year in accordance with this paragraph.

(2) 30In this Schedule, those elements of pharmaceutical remuneration
are referred to as “designated elements”.

(3) The Board must notify each clinical commissioning group of a
determination under sub-paragraph (1).

(4) The Board must apportion the sums paid by it in respect of each
35designated element during the financial year among all clinical
commissioning groups, in such manner as the Board thinks
appropriate.

(5) In apportioning sums under sub-paragraph (4), the Board may, in
particular, take into account the financial consequences of orders

for the provision of drugs that are attributable to the members of
each clinical commissioning group.

(6) Where an amount of pharmaceutical remuneration is apportioned
to a clinical commissioning group, the Board—

(a) 5may deduct that amount from the sums that it would
otherwise pay to the group under section 223G(1), and

(b) if it does so, must notify the group accordingly.

(7) The Secretary of State may direct the Board that an element of
pharmaceutical remuneration specified in the direction is not to be
10included in a determination under sub-paragraph (1).

(8) In determining the amount to be allotted to a clinical
commissioning group for the purposes of section 223G, the Board
must take into account the effect of this Schedule.

(9) For the purposes of sections 223H and 223I(3) and paragraph 17 of
15Schedule 1A, any amount of which a clinical commissioning
group is notified under sub-paragraph (6) is to be treated as
expenditure of the group which is attributable to the performance
by it of its functions in the year in question.

Other pharmaceutical remuneration

3 (1) 20This paragraph applies in relation to pharmaceutical
remuneration paid in a financial year other than—

(a) designated elements of such remuneration, and

(b) remuneration of a prescribed description.

(2) The Board may require a person to reimburse the Board for any
25pharmaceutical remuneration to which this paragraph applies if
the drugs or services to which the remuneration relates were—

(a) ordered by that person, or

(b) ordered in the course of the delivery of a service arranged
by that person.

(3) 30Any sum payable to the Board by virtue of sub-paragraph (2) may
be recovered summarily as a civil debt (but this does not affect any
other method of recovery).

Exercise of functions

4 The Board may, with the consent of the Secretary of State—

(a) 35direct a Special Health Authority to exercise any functions
of the Board under this Schedule, or

(b) arrange for any other person to exercise any of those
functions.”