Health and Care Bill (HL Bill 71)

Health and Care BillPage 220

(3)On an appeal under this paragraph, the Tribunal may confirm
NHS England’s decision or direct that it is not to have effect.

Inaccurate, incomplete or misleading information

7Where NHS England is satisfied that an integrated care board
5which has given an undertaking has supplied NHS England with
inaccurate, misleading or incorrect information in relation to the
undertaking—

(a)NHS England may treat the integrated care board as
having failed to comply with the undertaking, and

(b)10if NHS England decides so to treat the integrated care
board, NHS England must by notice revoke any certificate
of compliance given to that integrated care board.”

Section 74

Schedule 12 Removal of functions relating to competition etc

15Company Directors Disqualification Act 1986

1In section 9E of the Company Directors Disqualification Act 1986
(disqualification for competition infringements: interpretation), in
subsection (2), omit paragraph (f).

Competition Act 1998

220In section 54 of the Competition Act 1998 (list of regulators), in subsection
(1), omit paragraph (h).

Enterprise Act 2002

3(1)Section 136 of the Enterprise Act 2002 (investigations and reports on market
investigation references) is amended as follows.

(2)25In subsection (7), omit paragraph (i).

(3)In subsection (8), omit “, Monitor”.

Health and Social Care Act 2012

4The Health and Social Care Act 2012 is amended as follows.

5In section 74 (competition functions: supplementary), omit subsections (1) to
30(6).

6In section 288 (Monitor: duty to cooperate with Care Quality Commission),
omit subsection (3).

Enterprise and Regulatory Reform Act 2013

7The Enterprise and Regulatory Reform Act 2013 is amended as follows.

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8In Schedule 4 (the Competition and Markets Authority), in paragraph 16(7),
omit paragraph (g).

9In Schedule 14 (regulators: use of powers under the Competition Act 1998),
omit paragraphs 20 to 22.

5Care Act 2014

10In section 92 of the Care Act 2014 (care standards: false or misleading
information offence), omit subsections (7) and (8).

Section 95

Schedule 13 The Health Services Safety Investigations Body

10Part 1 Constitution

Status

1(1)The HSSIB is not to be regarded—

(a)as the servant or agent of the Crown, or

(b)15as enjoying any status, immunity or privilege of the Crown.

(2)The HSSIB’s property is not to be regarded—

(a)as the property of the Crown, or

(b)as property held on behalf of the Crown.

Membership

2(1)20The HSSIB is to consist of—

(a)a Chief Investigator appointed in accordance with paragraph 3,

(b)other members appointed in accordance with paragraph 4, and

(c)a chair and at least four other members appointed by the Secretary of
State.

(2)25The Chief Investigator is to be the chief executive of the HSSIB.

(3)The HSSIB must have more non-executive than executive members.

(4)In this Schedule—

(a)references to executive members of the HSSIB are references to the
members mentioned in sub-paragraph (1)(a) and (b), and

(b)30references to non-executive members of the HSSIB are references to
the members mentioned in sub-paragraph (1)(c).

The Chief Investigator: appointment and status

3(1)The Chief Investigator is to be appointed by the non-executive members
with the consent of the Secretary of State.

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(2)The Chief Investigator is to be an employee of the HSSIB.

Other executive members: appointment and status

4(1)The other executive members of the HSSIB are to be appointed by the non-
executive members.

(2)5The non-executive members may not appoint more than five other executive
members without the consent of the Secretary of State.

(3)The other executive members are to be employees of the HSSIB.

Non-executive members: tenure

5(1)A person holds and vacates office as a non-executive member of the HSSIB
10in accordance with that person’s terms of appointment (subject to the
following provisions of this paragraph).

(2)A person may at any time resign from office as a non-executive member by
giving notice to the Secretary of State.

(3)The Secretary of State may at any time remove a person from office as a non-
15executive member on any of the following grounds—

(a)incapacity,

(b)misbehaviour, or

(c)failure to carry out the person’s duties as a non-executive member.

(4)The Secretary of State may suspend a person from office as a non-executive
20member if it appears to the Secretary of State that there are or may be
grounds to remove the person from office under sub-paragraph (3).

(5)A person may be appointed as a non-executive member for an initial term of
up to three years.

(6)A person who has been appointed as a non-executive member for an initial
25term may be re-appointed, but only for one further term of up to three years.

(7)The further term must begin at the end of the initial term.

Non-executive members: suspension from office

6(1)This paragraph applies where a person is suspended under paragraph 5(4).

(2)The Secretary of State must give notice of the decision to suspend to the
30person.

(3)The suspension takes effect on receipt by the person of the notice.

(4)The notice may be—

(a)delivered in person (in which case the person is taken to receive it
when it is delivered), or

(b)35sent by first class post to the person’s last known address (in which
case the person is taken to receive it on the third day after the day on
which it is posted).

(5)The initial period of suspension must not exceed six months.

(6)The Secretary of State may review the suspension at any time .

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(7)The Secretary of State—

(a)must review the suspension if requested in writing by the person to
do so, but

(b)is not required to review the suspension before the end of the period
5of three months beginning with the start of the initial period of
suspension.

(8)Following a review during a period of suspension, the Secretary of State
may—

(a)confirm the suspension,

(b)10revoke the suspension, or

(c)suspend the person for another period of not more than six months
beginning with the expiry of the current period.

(9)The Secretary of State must revoke the suspension if the Secretary of State—

(a)decides that there are no grounds to remove the person from office
15under paragraph 5(3), or

(b)decides that there are grounds to do so but does not remove the
person from office under that provision.

7(1)Where a person is suspended from office as the chair under paragraph 5(4),
the Secretary of State may appoint a non-executive member as interim chair
20to exercise the chair’s functions.

(2)Appointment as interim chair is for a term not exceeding the shorter of—

(a)the period ending with either—

(i)the appointment of a new chair, or

(ii)the revocation or expiry of the existing chair’s suspension,
25and

(b)the remainder of the interim chair’s term as a non-executive member.

(3)Sub-paragraph (4) applies if—

(a)a person’s initial term as interim chair is to cease as a result of the
expiry of the person’s initial term as a non-executive member, and

(b)30that person is to be re-appointed as a non-executive member.

(4)The person may be re-appointed as interim chair for a further term
determined in accordance with sub-paragraph (2).

(5)That further term must begin at the end of the person’s initial term as interim
chair.

35Non-executive members: payment

8(1)The HSSIB must pay to the non-executive members such remuneration as
the Secretary of State may determine.

(2)The HSSIB must pay or make provision for the payment of such pensions,
allowances or gratuities as the Secretary of State may determine to or in
40respect of any person who is or has been a non-executive member.

(3)If a person ceases to be a non-executive member and the Secretary of State
decides that there are exceptional circumstances which mean that the person
should be compensated, the HSSIB must pay compensation to the person of
such amount as the Secretary of State may determine.

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Staff

9(1)The HSSIB may appoint such persons to be employees of the HSSIB as it
considers appropriate.

(2)Employees of the HSSIB are to be paid such remuneration as the HSSIB may
5determine.

(3)Employees of the HSSIB are to be appointed on such other terms and
conditions as the HSSIB may determine.

(4)The HSSIB may pay or make provision for the payment of such pensions,
allowances or gratuities as it may determine to or in respect of any person
10who is or has been an employee of the HSSIB.

(5)Before making a determination as to remuneration, pensions, allowances or
gratuities for the purposes of sub-paragraph (2) or (4), the HSSIB must
obtain the approval of the Secretary of State to its policy on that matter.

Procedure

10(1)15The HSSIB may regulate its own procedure.

(2)The validity of any act of the HSSIB is not affected by any vacancy among
the members or by any defect in the appointment of any member.

Committees

11(1)The HSSIB may appoint such committees and sub-committees as it
20considers appropriate.

(2)A committee or sub-committee may consist of or include persons who are
not members or employees of the HSSIB.

(3)The HSSIB may pay such remuneration and allowances as it may determine
to any person who—

(a)25is a member of a committee or a sub-committee, but

(b)is not an employee of the HSSIB,

whether or not that person is a non-executive member of the HSSIB.

(4)Before making a determination as to remuneration or allowances for the
purposes of sub-paragraph (3), the HSSIB must consult the Secretary of
30State.

Exercise of functions

12(1)The HSSIB must exercise the functions conferred on it by this Part
effectively, efficiently and economically.

(2)The HSSIB may arrange for the exercise of any of its functions on its behalf
35by—

(a)any non-executive member,

(b)any employee (including any executive member), or

(c)a committee or sub-committee.

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Assistance in exercise of functions

13(1)The HSSIB may arrange for persons to assist it in the exercise of its functions
in relation to—

(a)a particular case, or

(b)5cases of a particular description.

(2)Such arrangements may include provision with respect to the payment of
remuneration and allowances to, or amounts in respect of, such persons.

Funding

14(1)The Secretary of State may make payments to the HSSIB out of money
10provided by Parliament of such amounts as the Secretary of State considers
appropriate.

(2)Payments made under sub-paragraph (1) may be made at such times and on
such conditions (if any) as the Secretary of State considers appropriate.

Supplementary powers

15(1)15The HSSIB may do anything which is calculated to facilitate, or is conducive
or incidental to, the discharge of any function conferred on it by this Part.

(2)The power under sub-paragraph (1) includes power for the HSSIB to do the
following—

(a)enter into agreements;

(b)20acquire and dispose of property;

(c)supply materials, facilities and services to any person;

(d)develop and exploit ideas and exploit intellectual property.

(3)But the HSSIB requires the consent of the Secretary of State to borrow money
temporarily by way of overdraft.

25Use of income from charges

16Where the HSSIB receives income from imposing charges under section
113(8) or 114(4), it must ensure that the income is used for exercising its
functions.

Losses and liabilities etc

17(1)30Section 265 of the Public Health Act 1875 (which relates to the protection of
members and officers of certain authorities from personal liability) has effect
as if the HSSIB were an authority of the kind referred to in that section.

(2)In its application to the HSSIB as a result of sub-paragraph (1), section 265 of
that Act has effect as if the references in that section to that Act were
35references to this Part of this Act.

Accounts

18(1)The HSSIB must keep proper accounts and proper records in relation to the
accounts.

(2)The Secretary of State may give directions to the HSSIB as to—

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(a)the content and form of its accounts, and

(b)the methods and principles to be applied in the preparation of its
accounts.

19(1)The HSSIB must prepare annual accounts in respect of each financial year.

(2)5The HSSIB must send copies of the annual accounts to the Secretary of State
and the Comptroller and Auditor General within such period after the end
of the financial year to which the accounts relate as the Secretary of State
may direct.

(3)The Comptroller and Auditor General must—

(a)10examine, certify and report on the annual accounts, and

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

(4)In this paragraph and paragraph 20, “financial year” means a period of 12
months ending with 31 March.

Reports and other information

20(1)15As soon as practicable after the end of each financial year, the HSSIB must
prepare an annual report on how it has exercised its functions during the
financial year to which the report relates.

(2)The report must, among other things, set out the measures that the HSSIB
has taken to ensure that its functions are exercised effectively, efficiently and
20economically.

(3)The HSSIB must send a copy of the report to the Secretary of State.

(4)The Secretary of State must lay a copy of the report before Parliament.

(5)The HSSIB must publish the report once it has been laid before Parliament.

(6)Subject to sub-paragraph (7), the Secretary of State may require the HSSIB to
25provide to the Secretary of State such other reports and information relating
to the exercise of its functions as the Secretary of State may request.

(7)The Secretary of State may not require the HSSIB to provide any reports or
information that relate to an investigation that the HSSIB is carrying out or
has carried out.

30Seal and signature

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

(2)A document purporting to be duly executed under the HSSIB’s seal or to be
35signed on its behalf must be received in evidence and, unless the contrary is
proved, taken to be so executed or signed.

Part 2 Transfer schemes

22(1)The Secretary of State may, in connection with the establishment of the
40HSSIB by this Act, make one or more transfer schemes.

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(2)A “transfer scheme” is a scheme for the transfer to the HSSIB of any
property, rights or liabilities of NHS England relating to the discharge of
NHS England’s functions pursuant to any directions made by the Secretary
of State under the power conferred by section 38 which are in force at the
5time the scheme is made.

(3)The things that may be transferred under a transfer scheme include—

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

(b)property acquired, and rights and liabilities arising, after the making
10of the scheme;

(c)criminal liabilities.

(4)A transfer scheme may—

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

(b)15make provision about the continuing effect of things done by, on
behalf of or in relation to NHS England in respect of anything
transferred;

(c)make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in
20relation to NHS England in respect of anything transferred;

(d)make provision for references to NHS England in an instrument or
other document in respect of anything transferred to be treated as
references to the HSSIB;

(e)make provision for the shared ownership or use of property;

(f)25make provision which is the same as or similar to the TUPE
regulations;

(g)make other consequential, supplementary, incidental or transitional
provision.

(5)A transfer scheme may provide—

(a)30for modifications by agreement;

(b)for modifications to have effect from the date when the original
scheme came into effect.

(6)In sub-paragraph (4)(f), “the TUPE regulations” means the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).

(7)35For the purposes of this paragraph—

(a)references to right and liabilities include rights and liabilities relating
to a contract of employment;

(b)references to the transfer of property include the grant of a lease.

(8)For the purposes of sub-paragraph (7)(a)

(a)40an individual who holds employment in the civil service is to be
treated as employed by virtue of a contract of employment, and

(b)the terms of the individual’s employment in the civil service of the
State are to be regarded as constituting the terms of the contract of
employment.

23(1)45The Treasury may by regulations make provision varying the way in which
a relevant tax has effect in relation to—

(a)anything transferred under a scheme under paragraph 22, or

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(b)anything done for the purposes of, or in relation to, a transfer under
such a scheme.

(2)The provision which may be made under sub-paragraph (1)(a) includes in
particular provision for—

(a)5a tax provision not to apply, or to apply with modifications, in
relation to anything transferred;

(b)anything transferred to be treated in a specified way for the purposes
of a tax provision;

(c)the Secretary of State to be required or permitted to determine, or
10specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything transferred.

(3)The provision which may be made under sub-paragraph (1)(b) includes in
particular provision for—

(a)15a tax provision not to apply, or to apply with modifications, in
relation to anything done for the purposes of or in relation to the
transfer;

(b)anything done for the purposes of, or in relation to, the transfer to
have or not have a specified consequence or be treated in a specified
20way;

(c)the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything done for the purposes of, or in relation to, the transfer.

(4)25Regulations under this paragraph are subject to annulment in pursuance of
a resolution of the House of Commons.

(5)In this paragraph references to the transfer of property include the grant of
a lease.

(6)In this paragraph—

  • 30“relevant tax” means income tax, corporation tax, capital gains tax,
    value added tax, stamp duty or stamp duty reserve tax;
    “tax provision” means a provision of an enactment about a relevant tax.

Section 108

Schedule 14 Prohibition on disclosure of HSSIB material: exceptions

35Disclosures for purposes of investigations

1(1)The HSSIB, or an individual connected with the HSSB, may disclose
protected material to an individual connected with the HSSIB if—

(a)the person making the disclosure, or

(b)an authorised person,

40reasonably believes that the disclosure is necessary for the purposes of the
carrying out of the HSSIB’s investigation function.

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(2)In this paragraph “authorised person” means an individual connected with
the HSSIB who is authorised by the HSSIB for the purposes of this
paragraph.

2The HSSIB, or an individual connected with the HSSIB, may disclose
5protected material to a person not connected with the HSSIB if the Chief
Investigator reasonably believes that the disclosure is necessary for the
purposes of the carrying out of the HSSIB’s investigation function.

Disclosures relating to prosecution or investigation of offences

3The HSSIB, or an individual connected with the HSSIB, may disclose
10protected material to a person if the Chief Investigator reasonably believes
that the disclosure is necessary for the purposes of the prosecution or
investigation of an offence under section 107 (offences relating to
investigations) or 110 (unlawful disclosure).

Disclosures relating to safety risks

415The HSSIB, or an individual connected with the HSSIB, may disclose
protected material to a person where—

(a)the Chief Investigator reasonably believes that the disclosure of the
material is necessary to address a serious and continuing risk to the
safety of any patient or to the public,

(b)20the Chief Investigator reasonably believes that the person is in a
position to address the risk, and

(c)the disclosure is only to the extent necessary to enable the person to
take steps to address the risk.

Disclosure by order of the High Court

5(1)25A person may apply to the High Court for an order that any protected
material be disclosed by the HSSIB to the person for the purposes specified
in the application.

(2)Those purposes may include onward disclosure by the person making the
application to a person specified in the application.

(3)30The HSSIB may make representations to the High Court about any
application under this paragraph.

(4)The High Court may make an order on an application under this paragraph
only if it determines that the interests of justice served by the disclosure
outweigh—

(a)35any adverse impact on current and future investigations by deterring
persons from providing information for the purposes of
investigations, and

(b)any adverse impact on securing the improvement of the safety of
health care services provided to patients in England.

40Coroners

6(1)A senior coroner may under paragraph 1(1)(b) or (c) or (2) of Schedule 5 to
the Coroners and Justice Act 2009 (powers to require the production of
evidence) require the disclosure of protected material by the HSSIB to the
senior coroner in accordance with that Schedule.