Health and Social Care Bill

House of Commons

Session 2010 - 11
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Health and Social Care Bill

Health and Social Care Bill
Schedule 10 — Procedure on references under section 106
294

Schedule 10
Section 106

Procedure on references under section 106
Contents etc. of reference
1     (1)
A reference under section 106 must specify—
(a)
Monitor’s reasons for proposing the method to which the reference
5
relates, and
(b)
its representations as to why the grounds referred to in section 107(4)
do not apply.
      (2)
Monitor must give notice of the reference to—
(a)
the National Health Service Commissioning Board, and
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(b)
each licence holder (referred to in this Schedule as an “objector”) who
objected to the proposed method to which the reference relates.
      (3)
The notice must be accompanied by a copy of the reference.
Representations by objectors
2     (1)
If an objector wishes to make representations to the Competition
15
Commission on the matters specified in the reference for the purposes of
paragraph 1(1), the objector must do so before the end of the period of 10
working days beginning with the day on which the objector receives the
notice under paragraph 1(2).
      (2)
The objector must give Monitor a copy of the representations.
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      (3)
If Monitor wishes to reply to representations under sub-paragraph (1), it
must do so before the end of the period of 10 working days beginning with
the day on which it receives the copy under sub-paragraph (2).
      (4)
Monitor must send a copy of its reply to the objector who made the
representations.
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      (5)
In this Schedule, “working day” means any day other than—
(a)
Saturday or Sunday,
(b)
Christmas Day or Good Friday, or
(c)
a bank holiday in England and Wales under the Banking and
Financial Dealings Act 1971.
30
Functions of Commission in relation to reference
3     (1)
The following functions of the Competition Commission must be
performed, in accordance with rules under paragraph 11, by a group
selected for the purpose by the Chairman of the Commission—
(a)
considering a reference under section 106,
35
(b)
making a determination on the reference,
(c)
giving directions and taking other steps to give effect to the
Commission’s determination on the reference.
      (2)
A group selected under this paragraph must consist of three members of the
Commission.
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Schedule 10 — Procedure on references under section 106
295

      (3)
The Chairman of the Commission must appoint one of the members as chair
of the group.
      (4)
The Chairman of the Commission may select a member of the Commission
to replace a person as a member of group if—
(a)
the person being replaced has ceased to be a member of the
5
Commission,
(b)
the Chairman is satisfied that the person being replaced will be
unable, for a substantial period, to perform duties as a member of the
group, or
(c)
it appears to the Chairman that it is inappropriate, because of a
10
particular interest of the person being replaced, for that person to
remain a member of the group.
      (5)
The replacement of a member of a group does not prevent the group from
continuing after the replacement with anything begun before it.
      (6)
The Chairman of the Commission may be appointed as, or may be selected
15
to replace a person as, a member of a group (including as chair of the group).
      (7)
A decision of a group is effective only if—
(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
20
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
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
25
normal requirements, it may (on one occasion only) extend that period by
not more than 20 working days.
      (3)
The Competition Commission must ensure that an extension under sub-
paragraph (2) is notified to—
(a)
Monitor,
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(b)
the National Health Service Commissioning Board, and
(c)
every objector who made representations in accordance with
paragraph 2.
Matters to be considered on determination
5     (1)
If the group with the function of determining a reference considers it
35
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
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
40
2 that the objector did not raise at the time of the consultation under
section 105, and
(b)
all matters raised by Monitor in replies under paragraph 2 that it did
not include in the reference.

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Schedule 10 — Procedure on references under section 106
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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.
      (2)
The power to require the production of a document is a power to require its
production—
5
(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
it under this paragraph.
Oral hearings
10
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 106.
      (2)
A group with that function may administer oaths for the purposes of this
Schedule.
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      (3)
The Competition Commission may by notice require a person—
(a)
to attend at a time and place specified in the notice, and
(b)
to give evidence at that time and place to a group with that function.
      (4)
At an oral hearing, the group conducting the hearing may require a person
who comes within sub-paragraph (5), if present at the hearing, to give
20
evidence or to make representations.
      (5)
A person comes within this sub-paragraph if the person is—
(a)
an objector who has made representations in accordance with
paragraph 2,
(b)
a person attending the hearing as a representative of a person
25
mentioned in paragraph (a), or
(c)
a person attending the hearing as a representative of Monitor.
      (6)
A person who gives oral evidence at the hearing may be cross-examined by
or on behalf of any other person who is entitled to give evidence at the
hearing.
30
      (7)
If a person is not present at a hearing and so is not made subject to a
requirement under sub-paragraph (3)—
(a)
the Competition Commission is not required to give notice to the
person under that sub-paragraph, and
(b)
the group conducting the hearing may make a determination on the
35
reference without hearing that person’s evidence or representations.
      (8)
Where a person is required under this paragraph to attend at a place more
than 10 miles from that person’s place of residence, the Competition
Commission must pay the person the necessary expenses of attending.
Written statements
40
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
function of making a determination on a reference under section 106.

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Schedule 10 — Procedure on references under section 106
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      (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.
      (4)
In this paragraph and paragraph 9, “statement of truth” means a statement
5
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”)—
(a)
fails to comply with a notice or other requirement under paragraph
10
6, 7 or 8,
(b)
in complying with a notice under paragraph 8, makes a statement
that is false in any material particular, or
(c)
in providing information otherwise verified in accordance with a
statement of truth required rules under paragraph 11, provides
15
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.
      (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
20
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
of contempt of court.
General provisions relating to evidence
25
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.
      (2)
A notice under paragraph 6, 7 or 8 may be issued on the Competition
Commission’s behalf by a member of the Commission or its secretary.
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Procedural rules
11    (1)
The Competition Commission may make rules of procedure for
determinations on references under section 106.
      (2)
Those rules may include provision supplementing the provisions of this
Schedule in relation to any notice, hearing or requirement for which this
35
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
(b)
the making of representations at an oral hearing.
      (3)
The rules may apply, with or without modification, provision included in
40
appeal rules under Schedule 22 to the Energy Act 2004.
      (4)
The Commission must publish rules made under this paragraph.

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Schedule 11 — Part 3: minor and consequential amendments
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      (5)
Before making rules under this paragraph, the Commission must consult
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 106 must
5
make an order requiring the payment to the Competition Commission of the
costs incurred by the Commission in connection with the appeal.
      (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
10
appropriate, the order must require those costs to be paid by such objectors
as are specified in the order.
      (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 106 may
15
also make an order requiring Monitor or an objector who made
representations in accordance with paragraph 2 to make payments to the
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
20
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.
      (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.
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Power to modify time limits
13
The Secretary of State may by order vary any period specified in this
Schedule as the period within which something must be done.
Schedule 11
Section 135

Part 3: minor and consequential amendments
30
General
1     (1)
Any reference in an instrument or document to the Independent Regulator
of NHS Foundation Trusts is to be read, in relation to any time after the
commencement of section 51, as a reference to Monitor.
      (2)
Any reference in this Act or in any other enactment, instrument or document
35
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.

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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)
5
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
10
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).
Superannuation Act 1972 (c. 11)
15
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
Health and Social Care (Community Health and Standards) 2003 (which
20
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)—
(a)
at the appropriate place insert—
25
    “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
18 of Schedule 2 to the Health and Social Care (Community Health and
30
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)—
(a)
at the appropriate place insert—
35
    “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
19 of Schedule 2 to the Health and Social Care (Community Health and
40
Standards) Act 2003 (which inserted the entry in question).

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Schedule 11 — Part 3: minor and consequential amendments
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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)—
(a)
at the appropriate place insert—
    “Monitor.”, and
5
(b)
omit the entry for the Independent Regulator of NHS Foundation
Trusts.
National Health Service Act 2006 (c. 41)
8
The National Health Service Act 2006 is amended as follows.
9     (1)
Omit section 31 and Schedule 8 (continuation and constitution of the
10
Independent Regulator of NHS Foundation Trusts).
      (2)
In consequence of that repeal, omit paragraph 12 of Schedule 3 to the Health
Act 1999 (which amended Schedule 8).
10    (1)
Omit section 32 of that Act (general duty of regulator).
      (2)
Despite that repeal, that section is to continue, pending the commencement
15
of section 164 (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,”.
12
In section 276 (index of defined expressions), in the entry for “the regulator”,
20
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
authority), for “the Independent Regulator of NHS Foundation Trusts”
25
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
provider: notice requirements), for paragraph (c) substitute—
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“(c)
where the person registered as a service provider is a person
who holds a licence under Chapter 4 of Part 3 of the Health
and Social Care Act 2011, to Monitor,”.
16
In section 39(1) (notice requirements in relation to certain matters), for
paragraph (c) substitute—
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“(c)
where the person registered as a service provider in respect
of the activity is a person who holds a licence under Chapter
4 of Part 3 of the Health and Social Care Act 2011, to
Monitor,”.
17
In section 59 (power for Secretary of State to confer additional functions on
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