Health and Care Bill (HL Bill 71)

continued    Part 2 continued    

(2)The HSSIB may disclose protected material to a senior coroner for the
purposes of complying with a requirement imposed under a provision
mentioned in sub-paragraph (1).

(3)The HSSIB may disclose protected material to a senior coroner if the Chief
5Investigator reasonably believes that the coroner could require the HSSIB to
disclose the material under a provision mentioned in sub-paragraph (1).

(4)If protected material is disclosed to a senior coroner under or by virtue of
this paragraph, the senior coroner must not disclose that material to another
person, subject to sub-paragraphs (5) to (7).

(5)10A senior coroner may apply to the High Court for an order that protected
material disclosed to the senior coroner under or by virtue of this paragraph
may, for the purposes specified in the application, be disclosed by the senior
coroner—

(a)in the course of an investigation under Part 1 of the Coroners and
15Justice Act 2009,

(b)in a report made under paragraph 7 of Schedule 5 to that Act (reports
about action to prevent deaths), or

(c)otherwise to another person.

(6)The HSSIB may make representations to the High Court about any
20application under sub-paragraph (5).

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

(a)any adverse impact on current and future investigations by deterring
25persons 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.

(8)In this paragraph “senior coroner” means a person appointed as a senior
30coroner under paragraph 1 of Schedule 3 to the Coroners and Justice Act
2009.

Exercise of Chief Investigator’s functions

7(1)The Chief Investigator may arrange for the Chief Investigator’s functions
under any provision of this Schedule to be exercised by an investigator.

(2)35An arrangement under this paragraph may relate to a particular case, a
particular class of case or all cases.

Guidance

8(1)The HSSIB must publish guidance as to—

(a)when it might be appropriate for protected material to be disclosed
40under paragraph 2, 3, or 4,

(b)the types of protected material which it might be appropriate to
disclose under any such provision, and

(c)the processes which should be used when disclosing protected
material under any such provision.

(2)If the HSSIB revises the guidance, the HSSIB must publish it as revised.

Section 120

Schedule 15 Consequential amendments relating to Part 4

Public Records Act 1958 (c. 51)

15In Schedule 1 to the Public Records Act 1958 (definition of public records) in
Part 2 of the table in paragraph 3, at the appropriate place insert—

• “Health Services Safety Investigations Body (except for any
  record that is prohibited from being disclosed by section
  108 of the Health and Care Act 2021).”

10Public Bodies (Admission to Meetings) Act 1960 (c. 67)

2In the Schedule to the Public Bodies (Admission to Meetings) Act 1960
(public authorities to which that Act applies) in paragraph 1, after paragraph
(p) (inserted by Schedule 4 to this Act) insert—

“(q)the Health Services Safety Investigations Body.”

15Parliamentary Commissioner Act 1967 (c. 13)

3In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
subject to investigation) at the appropriate place insert—

• “The Health Services Safety Investigations Body.”

House of Commons Disqualification Act 1975 (c. 24)

420In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975
(other disqualifying offices) at the appropriate place insert —

• “Chief Investigator, chair or other member of the Health
  Services Safety Investigations Body.”

Copyright, Designs and Patents Act 1988 (c. 48)

525In section 48(6) of the Copyright, Designs and Patents Act 1988 (material
communicated to the Crown in the course of public business) after “the Care
Quality Commission,” insert “the Health Services Safety Investigations
Body,”.

Employment Rights Act 1996 (c. 18)

6(1)30The Employment Rights Act 1996 is amended as follows.

(2)In section 49B(7) (regulations prohibiting discrimination because of
protected disclosure) after paragraph (g) insert—

“(ga)the Health Services Safety Investigations Body;”.

(3)In section 50(8) (right to time off for public duties) after paragraph (ad)
35insert—

“(ae)the Health Services Safety Investigations Body,”.

(4)In section 218(10) (change of employer) after paragraph (cd) insert—

“(ce)the Health Services Safety Investigations Body.”

Freedom of Information Act 2000 (c. 36)

7In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public
5authorities to which that Act applies) at the appropriate place insert—

• “The Health Services Safety Investigations Body.”

National Health Service Act 2006 (c. 41)

8(1)The National Health Service Act 2006 is amended as follows.

(2)In section 9(4) (NHS contracts) after paragraph (kc) insert—

“(kd)10the Health Services Safety Investigations Body,”.

(3)In section 71(2) (schemes for meeting losses and liabilities etc of certain
health service bodies: bodies eligible to participate) after paragraph (fa)
insert—

“(fb)the Health Services Safety Investigations Body,”.

(4)15In section 247C(2) (Secretary of State’s duty to keep health service functions
under review) after paragraph (ea) insert—

“(eb)the Health Services Safety Investigations Body;”.

(5)In section 253 (emergency powers)—

(a)in subsection (1A), after paragraph (c) insert—

“(ca)20the Health Services Safety Investigations Body;”, and

(b)in subsection (2) for “to (c)” substitute “to (ca)”.

Health Act 2009 (c. 21)

9In section 2(2) of the Health Act 2009 (duty to have regard to NHS
Constitution) after paragraph (h) insert—

“(i)25the Health Services Safety Investigations Body.”

Equality Act 2010 (c. 15)

10In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities to which
the public sector equality duty applies) under the heading “Health, social
care and social security”, after the entry relating to the Health and Social
30Care Information Centre insert—

• “The Health Services Safety Investigations Body.”

Section 134

Schedule 16 Virginity testing: consequential amendments

Police and Criminal Evidence Act 1984

135In section 65A of the Police and Criminal Evidence Act 1984 (qualifying
offences for the purposes of Part 5 of that Act), in subsection (2), after

 paragraph (t) insert—

“(u)an offence under section 122, (123 or 124 of the Health and
Care Act 2021 (offences relating to virginity testing).”

Police and Criminal Evidence (Northern Ireland) Order 1989

25In Article 53A of the Police and Criminal Evidence (Northern Ireland) Order
1989 (S.I. 1989/1341 (N.I. 12)) (qualifying offences for the purposes of Part 6
of that Order), in paragraph (2)—

(a)the second sub-paragraph (t) (inserted by the Space Industry Act
2018) becomes sub-paragraph (u);

(b)10after that sub-paragraph insert—

“(v)an offence under section 130, 131 or 132 of the
Health and Care Act 2021 (offences relating to
virginity testing).”

Criminal Justice and Public Order Act 1994

3(1)15Schedule 7A to the Criminal Justice and Public Order Act 1994 (offences for
which cross-border powers of arrest available) is amended as follows.

(2)After paragraph 25 insert—

“25AAn offence under any of the following sections of the Health and
Care Act 2021—

(a)20section 122 (virginity testing);

(b)section 123 (offering to carry out virginity testing);

(c)section 124 (aiding or abetting etc a person to carry out
virginity testing).”

(3)After paragraph 43 insert—

“43A25An offence under any of the following sections of the Health and
Care Act 2021—

(a)section 126 (virginity testing);

(b)section 127 (offering to carry out virginity testing);

(c)section 128 (aiding or abetting etc a person to carry out
30virginity testing).”

(4)After paragraph 67 insert—

“68An offence under any of the following sections of the Health and
Care Act 2021—

(a)section 130 (virginity testing);

(b)35section 131 (offering to carry out virginity testing);

(c)section 132 (aiding or abetting etc a person to carry out
virginity testing).”

Crime and Disorder Act 1998

4In section 51C of the Crime and Disorder Act 1998 (notices in certain cases
40involving children), in subsection (3)—

(a)after paragraph (da) insert—

“(db)under section 122, 123 or 124 of the Health and Care Act
2021 (virginity testing etc);”;

(b)for “paragraph (a), (b), (c), (d) or (da)” substitute “any of paragraphs
(a) to (db)”.

Modern Slavery Act 2015

5In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence in
5section 45 does not apply), after paragraph 36A insert—

“Health and Care Act 2021

36BAn offence under any of the following provisions of the Health
and Care Act 2021—

(a)section 122 (virginity testing);

(b)10section 123 (offering to carry out virginity testing);

(c)section 124 (aiding or abetting etc a person to carry out
virginity testing).”

Section 144

Schedule 17 Advertising of less healthy food and drink

15Part 1 Programme services: watershed

Television programme services

1After section 321 of the Communications Act 2003 insert—

“321A Objectives for advertisements: less healthy food and drink

(1)20OFCOM must set standards by virtue of section 321(1)(b) prohibiting
television programme services provided between 5.30 am and 9.00
pm from including advertisements for an identifiable less healthy
food or drink product, except as provided for by subsection (2).

(2)Standards set by virtue of subsection (1) must exempt from the
25prohibition imposed by them—

(a)advertisements included in television programme services as
a result of arrangements made by or on behalf of a person
who is, at the time when the arrangements are made, a food
or drink SME;

(b)30advertisements prescribed in any regulations made by the
Secretary of State under this paragraph.

(3)For the purposes of this section—

(a)“advertisements” includes advertisements under a
sponsorship agreement and anything else which, under a
35sponsorship agreement, is included in a television
programme service, other than in a television programme;

(b)a product is “identifiable”, in relation to advertisements, if
persons in the United Kingdom (or any part of the United

Kingdom) could reasonably be expected to be able to identify
the advertisements as being for that product;

(c)a food or drink product is “less healthy” if—

(i)it falls within a description specified in regulations
5made by the Secretary of State, and

(ii)it is “less healthy” in accordance with the relevant
guidance;

(d)“the relevant guidance” is the guidance entitled “Nutrient
Profiling Technical Guidance” published by the Department
10of Health on 1 January 2011;

(e)“food or drink SME” means a small or medium enterprise,
within the meaning given by regulations made by the
Secretary of State, of a description specified in the
regulations.

(4)15Regulations under subsection (3)(e) that make provision by reference
to the number of members of staff of a person may make provision
about who is to count as a member of staff (including members of
staff of another person).

(5)The Secretary of State may by regulations amend this section to
20change the meaning of “the relevant guidance”.

(6)Before making regulations under subsection (2)(b) or (6), the
Secretary of State must consult such persons as the Secretary of State
considers appropriate.

(7)A statutory instrument containing regulations under subsection (5)
25may not be made unless a draft of the instrument has been laid
before and approved by a resolution of each House of Parliament.”

On-demand programme services

2After section 368F of the Communications Act 2003 insert—

“368FA Advertising: less healthy food and drink

(1)30Between 5.30 am and 9.00 pm, on-demand programme services must
not include advertisements for an identifiable less healthy food or
drink product.

(2)The prohibition imposed by subsection (1) does not apply in relation
to advertisements included in on-demand programme services as a
35result of arrangements made by or on behalf of a person who is, at
the time when the arrangements are made, a food or drink SME.

(3)The Secretary of State may by regulations provide for further
exemptions from the prohibition imposed by subsection (1).

(4)For the purposes of this section—

(a)40“advertisements” includes advertisements and sponsorship
announcements (within the meaning given by section
368G(17)) under a sponsorship agreement;

(b)a product is “identifiable”, in relation to advertisements, if
persons in the United Kingdom (or any part of the United
45Kingdom) could reasonably be expected to be able to identify
the advertisements as being for that product;

(c)a food or drink product is “less healthy” if—

(i)it falls within a description specified in regulations
made by the Secretary of State, and

(ii)it is “less healthy” in accordance with the relevant
5guidance;

(d)“the relevant guidance” means the guidance entitled
“Nutrient Profiling Technical Guidance” published by the
Department of Health on 1 January 2011;

(e)“food or drink SME” means a small or medium enterprise,
10within the meaning given by regulations made by the
Secretary of State, of a description specified in the
regulations.

(5)Regulations under subsection (4)(e) that make provision by reference
to the number of members of staff of a person may make provision
15about who is to count as a member of staff (including members of
staff of another person).

(6)The Secretary of State may by regulations amend this section to
change the meaning of “the relevant guidance”.

(7)Before making regulations under subsection (3) or (6), the Secretary
20of State must consult such persons as the Secretary of State considers
appropriate.

(8)A statutory instrument containing regulations under subsection (6)
may not be made unless a draft of the instrument has been laid
before and approved by a resolution of each House of Parliament.”

25Part 2 Online services: prohibition

3In the Communications Act 2003, after Part 4B insert—

“Part 4C Online advertising of less healthy food and drink

30Advertising of less healthy food and drink

368Z14 Prohibition of paid-for advertising of less healthy food and drink

(1)A person must not pay for advertisements for an identifiable less
healthy food or drink product to be placed on the internet.

(2)Subsection (1) does not apply where the person paying is, at the time
35when the payment is made, a food or drink SME.

(3)Subsection (1) does not apply—

(a)in relation to advertisements which are directed solely at
persons who are engaged in, or employed by, a business
which involves or is associated with the manufacture or sale
40of food or drink,

(b)in relation to advertisements included in on-demand
programme services (as to which, see section 368FA),

(c)in relation to advertisements included in services connected
to regulated radio services, or

(d)5in relation to advertisements which are not intended to be
accessed principally by persons in any part of the United
Kingdom.

(4)The Secretary of State may by regulations provide for further
exemptions from the prohibition imposed by subsection (1).

(5)10For the purposes of this section—

(a)paying includes providing any consideration (monetary or
non-monetary);

(b)“placed” includes continues to be placed;

(c)paying for advertisements to be placed on the internet
15includes paying under a sponsorship agreement as result of
which advertisements are placed on the internet;

(d)a product is “identifiable”, in relation to advertisements, if
persons in the United Kingdom (or any part of the United
Kingdom) could reasonably be expected to be able to identify
20the advertisements as being for that product;

(e)a food or drink product is “less healthy” if—

(i)it falls within a description specified in regulations
made by the Secretary of State, and

(ii)it is “less healthy” in accordance with the relevant
25guidance;

(f)“the relevant guidance” is the guidance entitled “Nutrient
Profiling Technical Guidance” published by the Department
of Health on 1 January 2011;

(g)“food or drink SME” means a small or medium enterprise,
30within the meaning given by regulations made by the
Secretary of State, of a description specified in the
regulations;

(h)“services connected to regulated radio services” has the
meaning given by regulations made by the Secretary of State.

(6)35Regulations under subsection (5)(g) that make provision by
reference to the number of members of staff of a person may make
provision about who is to count as a member of staff (including
members of staff of another person).

(7)The Secretary of State may by regulations amend this section to
40change the meaning of “the relevant guidance”.

(8)Before making regulations under subsection (4) or (7), the Secretary
of State must consult such persons as the Secretary of State considers
appropriate.

(9)A statutory instrument containing regulations under subsection (7)
45may not be made unless a draft of the instrument has been laid
before and approved by a resolution of each House of Parliament.

(10)A person is to be treated as having contravened subsection (1) if—

(a)at any time on or after 1 August 2021 but before 1 January
2023, the person made a payment for advertisements to be
placed on the internet on or after 1 January 2023, and

(b)if the payment had been made on 1 January 2023, the person
5would have contravened subsection (1).

(11)Subsection (10) does not apply if the person—

(a)has put in place arrangements to ensure that they are entitled
to require that the advertisements are not placed on the
internet on or after 1 January 2023, and

(b)10uses all reasonable endeavours to ensure that the
advertisements are not so placed.

368Z15 Enforcement

(1)Where the appropriate regulatory authority determine that a person
is contravening or has contravened section 368Z14 they may do one
15or both of the following—

(a)give the person an enforcement notification;

(b)impose a financial penalty on the person in accordance with
section 368Z16.

(2)The appropriate regulatory authority must not make a
20determination as mentioned in subsection (1) unless—

(a)there are reasonable grounds for believing that a
contravention of section 368Z14 is occurring or has occurred,
and

(b)they have allowed the person an opportunity to make
25representations about that apparent contravention.

(3)An enforcement notification is a notification which—

(a)specifies the determination made as mentioned in subsection
(1),

(b)imposes requirements on the person to take such steps for
30complying with section 368Z14 and for remedying the
consequences of the contravention as may be specified in the
notification,

(c)fixes a reasonable period for the taking of those steps, and

(d)sets out the reasons for the appropriate regulatory
35authority’s decision to give the enforcement notification.

(4)The requirements specified in an enforcement notification may
include requirements to do one or more of the following—

(a)instruct or request specified persons to remove specified
advertisements from the internet;

(b)40arrange for specified advertisements to be modified in
specified ways.

(5)A person to whom an enforcement notification is given must comply
with it.

(6)The duty under subsection (5) is enforceable in civil proceedings by
45the appropriate regulatory authority—

(a)for an injunction,

(b)for specific performance of a statutory duty under section 45
of the Court of Session Act 1988, or

(c)for any other appropriate remedy or relief.

(7)If a person to whom an enforcement notification has been given does
5not comply with it, the appropriate regulatory authority may impose
a financial penalty on that person in accordance with section 368Z16.

368Z16 Financial penalties

(1)The amount of a penalty imposed on a person under section 368Z15
is to be such amount not exceeding the maximum penalty as the
10appropriate regulatory authority determine to be—

(a)appropriate, and

(b)proportionate to the contravention in respect of which it is
imposed.

(2)The maximum penalty is—

(a)15in a case in which the person carries on a relevant business,
an amount not exceeding the greater of—

(i)5% of the turnover of the person’s relevant business
for the relevant period, and

(ii)£250,000;

(b)20in any other case, £250,000.

(3)For the purposes of this section—

(a)a person’s “relevant business” is so much of any business
carried on by the person as involves or is associated with the
manufacture or sale of less healthy food or drink products;

(b)25“relevant period”, in relation to a person’s relevant business,
means—

(i)except in a case falling within sub-paragraph (ii) or
(iii), the period of one year ending with the 31 March
before the time at which the penalty is imposed;

(ii)30in the case of a person who at the time at which the
penalty is imposed has been carrying on that business
for a period of less than a year, the period, ending
with that time, during which the person has been
carrying it on;

(iii)35in the case of a person who at the time at which the
penalty is imposed has ceased to carry on that
business, the period of one year ending with the time
when the person ceased to carry it on;

(c)the amount of the turnover of a person’s relevant business for
40the relevant period is to be calculated by the appropriate
regulatory authority in accordance with the following sub-
paragraphs—

(i)the amount is to be calculated in conformity with
accounting practices and principles which are
45generally accepted in the United Kingdom;

(ii)the amount is limited to the amounts derived by the
person from the relevant business after deduction of
sales rebates, value added tax and other taxes directly
related to turnover;