SCHEDULES

Section 120

SCHEDULE 12E+WProcedure on references under section 120

Contents etc. of referenceE+W

1(1)A reference under section 120 must specify—E+W

(a)Monitor's reasons for proposing the method to which the reference relates, and

(b)its representations as to why the grounds referred to in section 121(4) do not apply.

(2)Monitor must give notice of the reference to—

(a)[F1NHS England], and

(b)each objector.

(3)The notice must be accompanied by a copy of the reference.

(4)In this Schedule, “objector” means—

(a)in relation to a reference made where the condition in section 120(2)(a) is not met, each clinical commissioning group who objected to the proposed method to which the reference relates, and

(b)in relation to a reference made where the condition in section 120(2)(b) or (c) is not met, each relevant provider who objected to that proposed method.

Representations by objectorsE+W

2(1)If an objector wishes to make representations to the [F2CMA] 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).E+W

(2)The objector must give Monitor a copy of the representations.

(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.

(5)In this Schedule, “working day” means any day other than—

(a)a Saturday or a Sunday,

(b)Christmas Day or Good Friday, or

(c)a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

Functions of [F3CMA] in relation to referenceE+W

3F4(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

(2)A group [F5constituted by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 for the purpose of carrying out functions of the CMA with respect to a reference under section 120] must consist of three members of the [F6CMA panel].

F7(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)A decision of [F8the 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 referenceE+W

4(1)[F9The CMA must make its determination on a reference] 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.E+W

(2)If [F10the CMA] is satisfied that there are good reasons for departing from the normal requirements, it may (on one occasion only) extend that period by not more than 20 working days.

(3)The [F11CMA] must ensure that an extension under sub-paragraph (2) is notified to—

(a)Monitor,

(b)[F1NHS England], and

(c)every objector who made representations in accordance with paragraph 2.

Matters to be considered on determinationE+W

5(1)If the [F12CMA] considers it necessary to disregard the matters referred to in sub-paragraph (2) in order to secure the making of the determination [F13on a reference] within the period allowed by paragraph 4, it may do so.E+W

(2)The matters mentioned in sub-paragraph (1) are—

(a)all matters raised by an objector in representations under paragraph 2 that the objector did not raise at the time of the consultation under section 118, and

(b)all matters raised by Monitor in replies under paragraph 2 that it did not include in the reference.

Production of documentsE+W

6(1)The [F14CMA] may by notice require a person to produce to it the documents specified or otherwise identified in the notice.E+W

(2)The power to require the production of a document is a power to require its production—

(a)at the time and place specified in the notice, and

(b)in a legible form.

(3)The [F15CMA] may take copies of a document produced to it under this paragraph.

Oral hearingsE+W

7(1)For the purposes of this Schedule, an oral hearing may be held, and evidence may be taken on oath by [F16the CMA].E+W

(2)[F17The CMA] may administer oaths for the purposes of this Schedule.

(3)The [F18CMA] must give notice to each objector who has made representations in accordance with paragraph 2 of the time and place at which an oral hearing is to be held.

(4)The [F19CMA] may by notice require a person—

(a)to attend at a time and place specified in the notice, and

(b)to give evidence [F20to it] at that time and placeF21....

(5)At an oral hearing, the [F22CMA] may require a person who comes within sub-paragraph (6), if present at the hearing, to give evidence or to make representations.

(6)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 mentioned in paragraph (a), or

(c)a person attending the hearing as a representative of Monitor.

(7)A person who gives oral evidence at the hearing may be cross-examined by or on behalf of any other person who is present at the hearing and comes within sub-paragraph (6).

(8)If a person is not present at a hearing and so cannot be made subject to a requirement under sub-paragraph (5)—

(a)the [F23CMA] is not obliged to require the person to attend the hearing, and

(b)the [F24CMA] may make a determination on the reference without hearing that person's evidence or representations.

(9)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 [F25CMA] must pay the person the necessary expenses of attending.

Written statementsE+W

8(1)The [F26CMA] may by notice require a person to produce a written statement with respect to a matter specified in the notice to [F27the CMA].E+W

(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 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 evidenceE+W

9(1)This paragraph applies if a person (“the defaulter”)—E+W

(a)fails to comply with a notice or other requirement under paragraph 6, 7 or 8,

(b)in complying with a notice under paragraph 8, makes a statement that is false in a material particular, or

(c)in providing information otherwise verified in accordance with a statement of truth required by rules under paragraph 11, provides information that is false in a material particular.

(2)A member of the [F28group constituted for the purpose of carrying out functions of the CMA with respect to the reference to which the notice or requirement relates] 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 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 evidenceE+W

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.E+W

(2)A notice under paragraph 6, 7 or 8 may be given on the [F29CMA's behalf by a member of the group constituted for the purpose of carrying out functions of the CMA with respect to the reference to which the notice relates].

Procedural rulesE+W

11(1)The [F30CMA Board] may make rules of procedure for determinations on references under section 120.E+W

(2)Those rules may include provision supplementing the provisions of this Schedule in relation to any notice, hearing or requirement for which this 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 appeal rules under Schedule 22 to the Energy Act 2004.

(4)The [F31CMA Board] must publish rules made under this paragraph.

(5)Before making rules under this paragraph, the [F31CMA Board] must consult such persons as it considers appropriate.

(6)Rules under this paragraph may make different provision for different cases.

CostsE+W

12[F32(1)Where the CMA makes a determination on a reference under section 120 it must make an order requiring the payment to it of the costs it incurred in connection with the reference.]E+W

(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 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)[F33The CMA] may 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 [F34a determination on a reference under section 120].

(6)A person required by an order under this paragraph to pay a sum to another 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.

Power to modify time limitsE+W

13E+WThe Secretary of State may by order vary any period specified in this Schedule as the period within which something must be done.