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Health and Social Care BillPage 380

(a) examine, certify and report on the annual accounts, and

(b) lay copies of them and the report before Parliament.

20 (1) The Secretary of State may, with the approval of the Treasury, direct
Monitor to prepare accounts in respect of such period or periods as may be
5specified in the direction (“interim accounts”).

(2) Monitor must send copies of any interim accounts to the Secretary of State
and, if the Secretary of State so directs, the Comptroller and Auditor General
within such period as the Secretary of State may direct.

(3) The Comptroller and Auditor General must—

(a) 10examine, certify and report on any interim accounts sent by virtue of
sub-paragraph (2),

(b) if the Secretary of State so directs, send a copy of the report on the
accounts to the Secretary of State, and

(c) if the Secretary of State so directs, lay copies of the accounts and the
15report on them before Parliament.

Reports and other information

21 (1) As soon as practicable after the end of each financial year, Monitor must
prepare an annual report on how it has exercised its functions during the
year.

(2) 20The report must, in particular—

(a) set out the measures that Monitor has taken to promote economy,
efficiency and effectiveness in the use of resources for the exercise of
its functions,

(b) include a statement of what it did to comply with the duty under
25section 63(2) (duty to have regard to Secretary of State’s guidance on
duty under section 61(9)), and

(c) include a statement of what it did to comply with the duty under
section 64(1)(h) (duty to have regard to Secretary of State’s guidance
on relevant parts of document on improving quality of services).

(3) 30Monitor must—

(a) lay a copy of the report before Parliament, and

(b) once it has done so, send a copy of it to the Secretary of State.

(4) Monitor must provide the Secretary of State with—

(a) such other reports and information relating to the exercise of
35Monitor’s functions as the Secretary of State may require;

(b) such information about NHS foundation trusts that Monitor has in
its possession as the Secretary of State may require.

Recommendations by Committees in Parliament

22 Monitor must respond in writing to any recommendation about its exercise
40of its functions that a Committee of either House of Parliament or a
Committee of both Houses makes.

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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) 5A document purporting to be duly executed under Monitor’s seal or to be
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
10enjoying any status, immunity or privilege of the Crown.

(2) Monitor’s property must not be regarded as property of, or property held on
behalf of, the Crown.

Section 77

SCHEDULE 9 Requirements under section 75: undertakings

15Procedure

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
20publishing or revising the procedure.

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) 25commercial information the disclosure of which would, or might,
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
30person’s interests.

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
35Monitor agree.

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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) 5A person who has given a section 77 undertaking may at any time make an
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
10give notice to the applicant of its decision, before the end of the period of 14
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) 15based on an error of fact,

(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.

20Inaccurate, incomplete or misleading information

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
25undertaking, and

(b) if Monitor decides so to treat the person, Monitor must by notice
revoke any certificate of compliance given to that person.

Sections 101 and 142

SCHEDULE 10 References by Monitor to the Competition Commission

30Variation of reference

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) 35On receipt of a notice under sub-paragraph (1), the Commission must give
effect to the variation.

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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) 5any effects adverse to the public interest which Monitor considers
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.

10Publication etc. of reference

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) 15must publish particulars of the reference or variation.

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) 20such information in Monitor’s possession as relates to matters within
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
25appropriate for that purpose to give to the Commission
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
30the function, take account of such information as is given to it for that
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) 35A period specified for the purposes of sub-paragraph (1) must not be longer
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) 40the period specified in the reference, or

(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

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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) 5Where Monitor makes an extension under sub-paragraph (4), it must send
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) 10must include in the report definite conclusions on the questions in
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
15operate, or may be expected to operate, against the public interest,
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
20specified in the reference, must specify in the report changes which
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
25reference in pursuance of paragraph 15 of Schedule 7 to the Competition Act
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) 30A report of the Commission on a reference must be sent to Monitor.

(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) 35Not less than 24 hours after complying with sub-paragraph (6), Monitor
must publish the report.

Changes following report

7 (1) This paragraph applies where a report of the Competition Commission on a
reference—

(a) 40includes conclusions to the effect that any of the matters specified in
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,

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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
5prevented.

(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
10the changes specified in the report.

(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) 15specifying the period within which representations with respect to
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) 20Monitor must send the notice to the relevant persons.

(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) 25specifying the changes it proposes to make to remedy or prevent the
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) 30If a direction under paragraph 8 is not given to Monitor before the end of the
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
35period, Monitor must make such of the changes as are not specified in the
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),
40direct Monitor—

(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).

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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) 5The Commission may give a direction under sub-paragraph (1) only in
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) 10If the Commission gives a direction under sub-paragraph (1), it—

(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
15preventing the effects referred to in sub-paragraph (6).

(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) 20in the case of a direction under sub-paragraph (1)(b), such of those
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
25determining the matters specified in the reference.

(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) 30specifying the period within which representations on the proposed
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
35persons.

(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) 40stating the reason why it has made them.

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.

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(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
5practicable)—

(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
10disclosure the Commission considers would or might significantly
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) 15For the purposes of the law relating to defamation, absolute privilege
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
20purposes of a reference as they apply for the purposes of references under
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) 25section 112 (penalties: main procedural requirements),

(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) 30section 117 (offence of supplying false or misleading information),
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-
35paragraphs (4), (5) and (7) to (11), for the purposes of an investigation by the
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
40if—

(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
45which he has been required to produce under section 109, it
may impose a penalty in accordance with section 111., and

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(c) in subsection (9), for the words from “or (3)” to “section 65(3))” there
were substituted “, (3) or (5)”.

(4) Section 110, in its application by virtue of sub-paragraph (2), has effect as
if—

(a) 5the modifications in sub-paragraph (3) were made,

(b) in subsection (4), for the words “the publication of the report of the
Commission on the reference concerned” there were substituted “the
relevant day”, and

(c) after that subsection there were inserted—

(4A) 10The relevant day for the purposes of subsection (4) is—

(a) the day on which the Commission published a notice
under paragraph 8(12) of Schedule 10 to the Health
and Social Care Act 2012 in connection with the
reference concerned, or

(b) 15if it has not given a direction under paragraph 8(1) of
that Schedule in connection with the reference and
within the permitted period, the latest day on which
it was possible to give such a notice within that
period.

(5) 20Section 111, in its application by virtue of sub-paragraph (1) or (2), has effect
as if—

(a) in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b) in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

(6) Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (1), has
25effect as if—

(a) for the words from “published (or, in the case of a report under
section 50 or 65, given)” there were substituted “made”,

(b) for the words “published (or given)”, in each place they appear, there
were substituted “made”, and

(c) 30the words “by this Part” were omitted.

(7) Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (2), has
effect as if for sub-paragraph (ii) there were substituted—

(ii) if earlier, the relevant day (which for the purposes of
this subsection is to be construed in accordance with
35section 110(4A)).

(8) Section 112, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(9) Section 114, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

(10) 40Section 115, in its application by virtue of sub-paragraph (1) or (2), has effect
as if for “or (3)” there were substituted “, (3) or (5)”.

(11) Section 116, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (2), for “or (3)” there were substituted “, (3) or (5)”.

(12) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
45purposes of sections 109 to 116 of that Act (including, in particular,
provisions relating to the making of orders) have effect for the purposes of
the application of those sections by virtue of sub-paragraph (1) or (2) in

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relation to those sections as applied by virtue of the sub-paragraph
concerned.

(13) Accordingly, corresponding provisions of this Act do not have effect in
relation to those sections as applied by virtue of the sub-paragraph
5concerned.

Section 107

SCHEDULE 11 Further provision about Monitor’s enforcement powers

Part 1 Discretionary requirements

10Procedure

1 (1) Where Monitor proposes to impose a discretionary requirement on a person,
Monitor must give notice to that person (a “notice of intent”).

(2) A notice of intent must—

(a) state that Monitor proposes to impose the discretionary requirement
15and set out its effect,

(b) set out the grounds for the proposal to impose the requirement,

(c) explain the effect of section 106 (enforcement undertakings),

(d) set out the circumstances (if any) in which Monitor may not impose
the requirement, and

(e) 20specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.

(3) The notice period must be not less than 28 days beginning with the day after
that on which the notice of intent is received.

(4) But where Monitor—

(a) 25proposes to impose a compliance requirement or restoration
requirement, and

(b) considers that a shorter notice period is necessary to prevent or
minimise further breaches of the kind referred to in section 105(1),

the notice period is to be such shorter period as Monitor may determine, but
30not less than 5 days beginning with the day after that on which the notice of
intent is received.

2 (1) After the end of the notice period Monitor must decide whether to—

(a) impose the discretionary requirement, with or without
modifications, or

(b) 35impose any other discretionary requirement.

(2) Where Monitor decides under sub-paragraph (1) to impose a discretionary
requirement on a person Monitor must give notice to that person (a “final
notice”).

(3) A final notice must—

(a) 40state that Monitor has decided to impose the discretionary
requirement and set out its effect,

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Contents page 280-289 290-299 300-309 310-319 320-329 330-339 340-349 350-359 360-369 370-379 380-389 390-399 400-408 410-419 420-429 430-439 440-449 450-452 Last page