Postal Services Bill (HL Bill 66)

12 (1) Unless it provides otherwise, a direction under paragraph 11 takes effect for
an indefinite period beginning with the time at which it is notified to the
person to whom it is given.

(2) A direction under paragraph 11—

(a) 5in providing for the effect of a suspension or restriction to be
postponed, may provide for it to take effect only at a time
determined by or in accordance with the terms of the direction, and

(b) in connection with the suspension or restriction contained in the
direction or with the postponement of its effect, may impose such
10conditions on the contravening person as appear to OFCOM to be
appropriate for the purpose of protecting the users of that person’s
services.

(3) Those conditions may include a condition requiring the making of
payments—

(a) 15by way of compensation for loss or damage suffered by those users
as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which those
users have been put in consequence of the direction.

(4) OFCOM may revoke a direction under this paragraph or modify its
20conditions—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify,
and

(c) to such extent and in relation to such services, or parts of a service, as
25they may determine.

(5) For the purposes of paragraph 11 there are repeated contraventions by a
person of regulatory requirements to the extent that—

(a) in the case of a previous notification given to that person under
paragraph 2, OFCOM have determined for the purposes of
30paragraph 5(2) or 6(2) that a contravention did occur,

(b) in the period of 12 months following the day of the making of that
determination, one or more further notifications have been given to
that person in respect of contraventions of a regulatory requirement,
and

(c) 35the previous notification and the subsequent ones all relate to
contraventions of the same regulatory requirement (whether the
same contravention or different ones).

13 (1) OFCOM are not to give a direction under paragraph 11 unless they have—

(a) notified the contravening person of the proposed direction and of the
40conditions (if any) which they are proposing to impose by that
direction,

(b) provided the contravening person with an opportunity of making
representations about the proposals and of proposing steps for
remedying the situation, and

(c) 45considered every representation and proposal made to them during
the period allowed by them for the contravening person to take
advantage of that opportunity.

(2) That period must be at least one month beginning with the day after the day
the notification is given.

(3) This paragraph does not apply in an urgent case (as to which, see paragraph
14).

14 (1) In an urgent case, OFCOM must, as soon as reasonably practicable after
giving a direction under paragraph 11, give the contravening person—

(a) 5an opportunity of making representations to them about the effect of
the direction and of any of its conditions, and

(b) an opportunity of proposing steps to remedy the situation.

(2) A case is urgent for the purposes of this paragraph if OFCOM—

(a) consider that it would be inappropriate, because the contraventions
10in question fall within sub-paragraph (3), to allow time, before giving
the direction, for the making and consideration of representations,
and

(b) decide for that reason to act in accordance with this paragraph
instead of paragraph 13.

(3) 15The contraventions fall within this sub-paragraph if they have resulted in or
create an immediate risk of—

(a) a serious threat to the safety of the public, to public health or to
national security,

(b) serious economic or operational problems for persons providing
20postal services (other than the contravening person), or

(c) serious economic or operational problems for users of postal
services.

Enforcement of directions under paragraph 8 or 11

15 (1) A person commits an offence if the person provides any service—

(a) 25while the person’s entitlement to do so is suspended by a direction
under paragraph 8 or 11, or

(b) in contravention of a restriction contained in a direction under either
of those paragraphs.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) 30on summary conviction, to a fine not exceeding the statutory
maximum, and

(b) on conviction on indictment, to a fine.

Civil liability for breach of regulatory requirements etc.

16 (1) The duty of a person to comply with—

(a) 35regulatory requirements,

(b) requirements imposed by an enforcement notification under
paragraph 5, or

(c) a condition of a direction under paragraph 8 or 11,

is a duty owed to every person who may be affected by a contravention of
40the requirement or condition.

(2) Sub-paragraphs (3) and (4) apply where a duty is owed by virtue of sub-
paragraph (1) to a person.

(3) A breach of the duty that causes that person to sustain loss or damage is
actionable at the suit or instance of that person.

(4) An act which—

(a) by inducing a breach of the duty or interfering with its performance,
causes that person to sustain loss or damage, and

(b) is done wholly or partly for achieving that result,

5is actionable at the suit or instance of that person.

(5) In proceedings brought against a person as a result of sub-paragraph (3) it is
a defence for that person to show that the person took—

(a) all reasonable steps, and

(b) exercised all due diligence,

10to avoid contravening the requirement or condition in question.

(6) The consent of OFCOM is required for the bringing of proceedings as a
result of sub-paragraph (1)(a).

(7) If OFCOM give their consent subject to conditions relating to the conduct of
the proceedings, the proceedings are not to be carried on except in
15compliance with those conditions.

Section 53

SCHEDULE 8 Information provisions

Part 1 Requirements to provide information to OFCOM

20Information required for purposes of OFCOM’s functions in relation to postal services

1 (1) OFCOM may require a person falling within sub-paragraph (2) to provide
them with all such information as they consider necessary for the purpose of
carrying out any of their functions in relation to postal services.

(2) The persons within this sub-paragraph are—

(a) 25a person who is, or has been, a postal operator,

(b) a person who provides, or has provided, access points or other
facilities for use in connection with a postal service, and

(c) a person not falling within paragraph (a) or (b) who appears to
OFCOM to have information required by them for the purpose of
30carrying out any of their functions in relation to postal services.

(3) The required information may, in particular, include information required
for any one or more of the following purposes—

(a) ascertaining whether a contravention of a regulatory requirement
(within the meaning of Schedule 7) has occurred or is occurring,

(b) 35ascertaining whether a provision of a regulatory condition which is
for the time being in force continues to be effective for the purpose
for which it was made,

(c) making a designation in accordance with regulations made under
section 34,

(d) 40carrying out a review under section 34 or 42,

(e) ascertaining or verifying amounts payable by virtue of section 44,

(f) ascertaining or verifying charges payable under Schedule 4,

(g) identifying markets and carrying out market analyses or
assessments in accordance with, or for the purposes of, any
enactment relating to postal services, and

(h) 5statistical purposes connected with the carrying out of any of
OFCOM’s functions in relation to postal services.

(4) A demand for information under this paragraph must be proportionate to
the use to which the information is to be put in the carrying out of OFCOM’s
functions.

10Restrictions on imposing requirements in case of conditions of general application

2 (1) This paragraph limits the circumstances in which OFCOM may require the
provision of information under paragraph 1 for the purpose of ascertaining
whether there is, or has been, a contravention of a condition of general
application.

(2) 15OFCOM may require the provision of information for that purpose only if—

(a) the requirement is imposed for the purpose of investigating a matter
about which OFCOM have received a complaint,

(b) the requirement is imposed for the purposes of an investigation that
OFCOM have decided to carry out into whether or not the condition
20in question has been complied with,

(c) the condition in question is one which OFCOM have reason to
suspect is one that has been, or is being, contravened, or

(d) the condition in question falls within section 40(2)(b).

(3) A “condition of general application” means a regulatory condition other
25than a designated USP condition, a USP access condition or a USP
accounting condition.

Information required for related purposes

3 (1) OFCOM may require—

(a) a postal operator, or

(b) 30a person who provides access points or other facilities for use in
connection with a postal service,

to provide OFCOM with all such information as they consider necessary to
carry out comparative overviews of the quality and prices of postal services.

(2) The overviews in question must be carried out—

(a) 35with a view to publication, and

(b) in the interest of users of postal services.

(3) OFCOM may also require—

(a) a postal operator, or

(b) a person who provides access points or other facilities for use in
40connection with a postal service,

to provide OFCOM, for use for such statistical purposes as they think fit,
with information relating to the provision of postal services.

(4) A demand for information under this paragraph must be proportionate to
the use to which the information is to be put in the carrying out of OFCOM’s
45functions.

Manner in which information may be required

4 (1) A person required to provide information under paragraph 1 or 3 must
provide it in such manner and within such reasonable period as may be
specified by OFCOM.

(2) 5OFCOM must require the provision of information under paragraph 1 or 3
by a demand which—

(a) describes the required information, and

(b) sets out OFCOM’s reasons for requiring it.

(3) The reasons for requiring information for statistical purposes under
10paragraph 1 or 3 must set out the statistical purposes for which the
information is required.

(4) A demand for information under paragraph 1 or 3 must be contained in a
notice served on the person from whom the information is required.

(5) This is subject to an exception in the case of information required by OFCOM
15for the purpose of ascertaining who is liable to charges under Schedule 4.

(6) In that case, the demand—

(a) may be made by being published in such manner as OFCOM
consider appropriate for bringing it to the attention of the persons
described in the demand as the persons from whom the information
20is required, and

(b) may take the form of a general demand for a person so described to
provide information when specified conditions relevant to the
person’s liability to the charges are satisfied.

Part 2 25Enforcement

Notification of contravention of information requirements

5 (1) OFCOM may give a person a notification under this paragraph if they
determine that there are reasonable grounds for believing that the person is
contravening, or has contravened, a requirement imposed under paragraph
301 or 3.

(2) A notification under this paragraph must—

(a) set out the determination made by OFCOM, and

(b) specify the requirement and contravention in respect of which that
determination has been made.

(3) 35A notification under this paragraph must also specify the period during
which the person notified has an opportunity—

(a) to make representations about the matters notified, and

(b) to comply with notified requirements of which the person remains in
contravention.

(4) 40The specified period must be at least one month beginning with the day after
the day the notification is given unless—

(a) OFCOM and the person notified agree a shorter period, or

(b) OFCOM have reasonable grounds for believing that the
contravention is a repeated contravention and, in those
circumstances, consider a shorter period would be appropriate.

(5) A contravention is a repeated contravention, in relation to a notification with
5respect to the contravention, if—

(a) a previous notification has been given in respect of the same
contravention or in respect of another contravention of the same
requirement, and

(b) the subsequent notification is given no more than 12 months after the
10day on which OFCOM determine for the purposes of paragraph 7(2)
that the contravention to which the previous notification related did
occur.

(6) OFCOM may (on one or more occasions) extend the specified period.

6 (1) A notification under paragraph 5—

(a) 15may be given in respect of more than one contravention, and

(b) if it is given in respect of a continuing contravention, may be given
in respect of any period during which the contravention has
continued.

(2) If a notification under paragraph 5 has been given to a person in respect of a
20contravention of a requirement, OFCOM may give a further notification in
respect of the same contravention of that requirement only if—

(a) the contravention occurs after the earlier notification is given,

(b) the contravention is a continuing one and the subsequent notification
is in respect of so much of a period as falls after a period to which the
25earlier notification relates, or

(c) the earlier notification has been withdrawn without a penalty having
been imposed in respect of the notified contravention.

Penalties for contravention of information requirements

7 (1) This paragraph applies if—

(a) 30a person has been given a notification under paragraph 5,

(b) OFCOM have allowed the person an opportunity of making
representations about the matters notified, and

(c) the period allowed for the making of the representations has ended.

(2) OFCOM may impose a penalty on a person if—

(a) 35they are satisfied that the person has, in one or more of the respects
notified, been in contravention of a requirement specified in the
notification under paragraph 5,

(b) the person has not, during the period allowed under that paragraph,
complied with the notified requirement, and

(c) 40no proceedings for an offence under paragraph 13 have been
brought against the notified person in respect of the contravention.

(3) If a notification under paragraph 5 relates to more than one contravention, a
separate penalty may be imposed in respect of each contravention.

(4) If a notification under that paragraph relates to a continuing contravention,
45no more than one penalty may be imposed in respect of the period of
contravention specified in the notification.

(5) The amount of a penalty imposed under this paragraph is to be such amount
as OFCOM determine to be—

(a) appropriate, and

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

(6) 5The amount must not be more than £50,000.

(7) In making the determination of the amount of the penalty OFCOM must
have regard to—

(a) any representations made to them by the person, and

(b) any steps taken by the person towards complying with the
10requirements contraventions of which have been notified to the
person under paragraph 5.

(8) If OFCOM impose a penalty on a person under this paragraph, they must—

(a) within one week of making their decision to impose the penalty,
notify that person of that decision and of their reasons for it, and

(b) 15in that notification, fix a reasonable period after it is given as the
period within which the penalty is to be paid.

(9) A penalty imposed under this paragraph—

(a) must be paid to OFCOM, and

(b) if not paid within the period fixed by them, is to be recoverable by
20them accordingly.

(10) The Secretary of State may by order substitute a different maximum penalty
for the maximum penalty for the time being specified in sub-paragraph (6).

(11) An order under sub-paragraph (10) is subject to affirmative resolution
procedure.

25Suspending service provision for contravention of information requirements

8 (1) OFCOM may give a direction under this paragraph to any person who is
providing one or more postal services (“the contravening person”).

(2) A direction under this paragraph is a direction that the entitlement of the
contravening person to provide postal services—

(a) 30is suspended (either generally or in relation to particular services), or

(b) is restricted in the respects set out in the direction.

(3) OFCOM may give a direction under this paragraph only if they are satisfied
that conditions A to C are met.

(4) Condition A is that the contravening person is or has been in serious and
35repeated contravention of requirements imposed under paragraph 1 or 3.

(5) Condition B is that an attempt, by the imposition of penalties under
paragraph 7 or the bringing of proceedings under paragraph 13, to secure
compliance with the contravened requirements has failed.

(6) Condition C is that the giving of the direction is—

(a) 40appropriate, and

(b) proportionate to the seriousness (when repeated as they have been)
of the contraventions.

9 (1) Unless it provides otherwise, a direction under paragraph 8 takes effect for
an indefinite period beginning with the time at which it is notified to the
person to whom it is given.

(2) A direction under paragraph 8—

(a) 5in providing for the effect of a suspension or restriction to be
postponed, may provide for it to take effect only at a time
determined by or in accordance with the terms of the direction, and

(b) in connection with the suspension or restriction contained in the
direction or with the postponement of its effect, may impose such
10conditions on the contravening person as appear to OFCOM to be
appropriate for the purpose of protecting the users of that operator’s
services.

(3) Those conditions may include a condition requiring the making of
payments—

(a) 15by way of compensation for loss or damage suffered by those users
as a result of the direction, or

(b) in respect of annoyance, inconvenience or anxiety to which those
users have been put in consequence of the direction.

(4) OFCOM may revoke a direction under paragraph 8 or modify its
20conditions—

(a) with effect from such time as they may direct,

(b) subject to compliance with such requirements as they may specify,
and

(c) to such extent and in relation to such services, or parts of a service, as
25they may determine.

(5) For the purposes of paragraph 8 there are repeated contraventions by a
person of requirements imposed under paragraph 1 or 3 to the extent that—

(a) in the case of a previous notification given to that person under
paragraph 5, OFCOM have determined for the purposes of
30paragraph 7(2) that a contravention did occur, and

(b) in the period of 12 months following the day of the making of that
determination, one or more further notifications have been given to
that person in respect of contraventions of a requirement imposed
under paragraph 1 or 3.

(6) 35For the purposes of sub-paragraph (5) it does not matter whether the
notifications relate to the same contravention or to different contraventions
of the same or different requirements or of requirements under different
paragraphs.

10 (1) OFCOM are not to give a direction under paragraph 8 unless they have—

(a) 40notified the contravening person of the proposed direction and of the
conditions (if any) which they are proposing to impose by that
direction,

(b) provided the contravening person with an opportunity of making
representations about the proposals and of proposing steps for
45remedying the situation, and

(c) considered every representation and proposal made to them during
the period allowed by them for the contravening person to take
advantage of that opportunity.

(2) That period must be at least one month beginning with the day after the day
the notification is given.

(3) This paragraph does not apply in an urgent case (as to which, see paragraph
11).

11 (1) 5In an urgent case, OFCOM must, as soon as reasonably practicable after
giving a direction under paragraph 8, give the contravening person—

(a) an opportunity of making representations to them about the effect of
the direction and of any of its conditions, and

(b) an opportunity of proposing steps to remedy the situation.

(2) 10A case is urgent for the purposes of this paragraph if OFCOM—

(a) consider that it would be inappropriate, because the contraventions
in question fall within sub-paragraph (3), to allow time, before giving
the direction, for the making and consideration of representations,
and

(b) 15decide for that reason to act in accordance with this paragraph
instead of paragraph 10.

(3) The contraventions fall within this sub-paragraph if they have resulted in or
create an immediate risk of—