Session 2010 - 11
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Health and Social Care Bill


Health and Social Care Bill
Schedule 8 — Monitor

332

 

      (8)  

Monitor must act with a view to securing that NHS foundation trusts—

(a)   

comply promptly with requests from it or the Secretary of State for

information relating to their accounts, and

(b)   

otherwise act so as to facilitate the preparation of accounts by the

Secretary of State.

5

      (9)  

This paragraph does not apply to the financial year specified for the

purposes of section 152(7) (which provides for the order that commences

section 152, which itself relates to the preparation of the accounts of NHS

foundation trusts, to specify the first financial year to which that section will

apply) or to the subsequent financial years.

10

Accounts of Monitor

18    (1)  

Monitor must keep proper accounts and proper records in relation to the

accounts.

      (2)  

The Secretary of State may, with the approval of the Treasury, give

directions to Monitor 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.

      (3)  

In sub-paragraph (2), the reference to accounts includes Monitor’s annual

accounts prepared under paragraph 19 and any interim accounts prepared

20

by virtue of paragraph 20.

19    (1)  

Monitor must prepare annual accounts in respect of each financial year.

      (2)  

Monitor 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

25

may direct.

      (3)  

The Comptroller and Auditor General must—

(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

30

Monitor to prepare accounts in respect of such period or periods as may be

specified 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.

35

      (3)  

The Comptroller and Auditor General must—

(a)   

examine, 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

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(c)   

if the Secretary of State so directs, lay copies of the accounts and the

report on them before Parliament.

 
 

Health and Social Care Bill
Schedule 9 — Requirements under section 67: undertakings

333

 

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)  

The report must, in particular, set out the measures that Monitor has taken

5

to promote economy, efficiency and effectiveness in the use of resources for

the exercise of its functions.

      (3)  

Monitor 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.

10

      (4)  

Monitor must provide the Secretary of State with—

(a)   

such other reports and information relating to the exercise of

Monitor’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.

15

Recommendations by Committees in Parliament

22         

Monitor must respond in writing to any recommendation about its exercise

of its functions that a Committee of either House of Parliament or a

Committee of both Houses makes.

Seal and evidence

20

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)  

A 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

25

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

enjoying any status, immunity or privilege of the Crown.

      (2)  

Monitor’s property must not be regarded as property of, or property held on

30

behalf of, the Crown.

Schedule 9

Section 69

 

Requirements under section 67: undertakings

Procedure

1     (1)  

Monitor must publish a procedure for entering into section 69 undertakings.

35

      (2)  

Monitor may revise the procedure and, if it does so, Monitor must publish

the procedure as revised.

 
 

Health and Social Care Bill
Schedule 9 — Requirements under section 67: undertakings

334

 

      (3)  

Monitor must consult such persons as it considers appropriate before

publishing or revising the procedure.

2     (1)  

Where Monitor accepts a section 69 undertaking, Monitor must publish the

undertaking.

      (2)  

But Monitor must not under sub-paragraph (1) publish any part of a section

5

69 undertaking which contains commercial information the disclosure of

which Monitor considers would or might significantly harm the legitimate

business interests of any person to whom it relates.

Variation of terms

3          

The terms of a section 69 undertaking (including in particular the action

10

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

Monitor agree.

Compliance certificates

4     (1)  

Where Monitor is satisfied that a section 69 undertaking has been complied

15

with, Monitor must issue a certificate to that effect (referred to in this

Schedule as a “compliance certificate”).

      (2)  

A person who has given a section 69 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

20

information, as Monitor requires.

      (4)  

Monitor must decide whether or not to issue a compliance certificate, and

give 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

25

refuse an application for a compliance certificate.

      (2)  

The grounds for an appeal under this paragraph are that the decision was—

(a)   

based on an error of fact,

(b)   

wrong in law, or

(c)   

unfair or unreasonable.

30

      (3)  

On an appeal under this paragraph, the Tribunal may confirm Monitor’s

decision or direct that it is not to have effect.

Inaccurate, incomplete or misleading information

6          

Where Monitor is satisfied that a person who has given a section 69

undertaking has supplied Monitor with inaccurate, misleading or incorrect

35

information in relation to the undertaking—

(a)   

Monitor may treat the person as having failed to comply with the

undertaking, and

(b)   

if Monitor decides so to treat the person, Monitor must by notice

revoke any certificate of compliance given to that person.

40

 
 

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission

335

 

Schedule 10

Sections 103 and 140

 

References by Monitor to the Competition Commission

Variation of reference

1     (1)  

Monitor may, at any time, by notice given to the Competition Commission

vary a reference—

5

(a)   

by adding to the matters specified in the reference, or

(b)   

by excluding from the reference some of the matters so specified.

      (2)  

On receipt of a notice under sub-paragraph (1), the Commission must give

effect to the variation.

Monitor’s opinion of public interest etc.

10

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)   

any effects adverse to the public interest which Monitor considers

the matters specified in the reference or variation have or may be

15

expected to have, and

(b)   

any changes in relation to those matters by which Monitor considers

those effects could be remedied or prevented.

Publication etc. of reference

3          

As soon as practicable after making a reference, or a variation under

20

paragraph 1, Monitor—

(a)   

must send a copy of the reference or variation to the relevant

persons, and

(b)   

must publish particulars of the reference or variation.

Information

25

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)   

such information in Monitor’s possession as relates to matters within

the scope of the investigation or the carrying out of the function

30

and—

(i)   

is requested by the Commission for that purpose, or

(ii)   

is information which Monitor considers it would be

appropriate for that purpose to give to the Commission

without request, and

35

(b)   

such other assistance as the Commission may require, and as is

within its power to give, in relation to any such matters.

      (2)  

The Commission must, for the purpose of carrying out the investigation or

the function, take account of such information as is given to it for that

purpose under sub-paragraph (1).

40

 
 

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission

336

 

Time limits

5     (1)  

A reference must specify a period within which the Competition

Commission must make a report on the reference.

      (2)  

A period specified for the purposes of sub-paragraph (1) must not be longer

than six months beginning with the date of the reference.

5

      (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)   

the period specified in the reference, or

(b)   

such further period as is allowed under sub-paragraph (4).

10

      (4)  

Monitor may, if it receives representations on the subject from the

Competition Commission and is satisfied that there are special reasons why

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

15

(4) in relation to the same reference.

      (6)  

Where 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

20

6     (1)  

In making a report on a reference, the Competition Commission—

(a)   

must 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,

25

(b)   

where it concludes that any of the matters specified in the reference

operate, 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

30

remedied or prevented by changes in relation to the matters

specified 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-

35

thirds of the members of the group constituted in connection with the

reference 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

40

statement of the member’s disagreement and reasons for disagreeing.

      (4)  

A 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.

 
 

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission

337

 

      (6)  

Not less than 14 days after the Secretary of State receives that copy, Monitor

must send a copy to the relevant persons.

      (7)  

Not less than 24 hours after complying with sub-paragraph (6), Monitor

must publish the report.

Changes following report

5

7     (1)  

This paragraph applies where a report of the Competition Commission on a

reference—

(a)   

includes conclusions to the effect that any of the matters specified in

the reference operate, or may be expected to operate, against the

public interest,

10

(b)   

specifies effects adverse to the public interest which those matters

have or may be expected to have,

(c)   

includes conclusions to the effect that those effects could be

remedied or prevented by changes to the matters specified in the

reference, and

15

(d)   

specifies changes by which those effects could be remedied or

prevented.

      (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.

20

      (3)  

Before making changes under this paragraph, Monitor must have regard to

the 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,

25

(b)   

stating the reasons why it proposes to make the changes, and

(c)   

specifying 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

30

published.

      (6)  

Monitor 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 under sub-paragraph (4)(c), Monitor must send a notice to the

35

Competition Commission—

(a)   

specifying 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

40

representations referred to in that sub-paragraph.

     (10)  

If 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.

45

 
 

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission

338

 

     (11)  

If a direction under that paragraph is given to Monitor before the end of that

period, 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

5

beginning with the day on which it is sent a notice under paragraph 7(8),

direct 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).

10

      (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)  

The Commission may give a direction under sub-paragraph (1) only in

15

respect of such of the changes specified in the notice under paragraph 7(8)(a)

as it considers are 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)  

If the Commission gives a direction under sub-paragraph (1), it—

20

(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

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

25

      (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)   

in the case of a direction under sub-paragraph (1)(b), such of those

30

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

determining the matters specified in the reference.

35

      (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)   

specifying the period within which representations on the proposed

40

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

persons.

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