Postal Services Bill (HL Bill 66)

(b) to notify the person whether a notification submitted for the
purposes of those regulations satisfies the requirements of those
regulations, or

(c) to provide the person with such information about the person’s
5rights as may be necessary for the purpose of facilitating the
negotiation by the person of any right to be provided with access
pursuant to an access condition.

(2) A request for the purposes of this paragraph must be made in such manner
as OFCOM may require.

(3) 10OFCOM do not have to comply with a request under this paragraph if
(without having been asked to do so) they have already given the person the
notification or information for which the person is asking.

(4) Any notification or information which under sub-paragraph (1) must be
given or provided by OFCOM must be given or provided before the end of
15the period of one week beginning with the day on which the request was
made to them.

Section 64

SCHEDULE 9 Transitional provisions for Part 3

Introduction

1 20In this Schedule—

• “the appointed day” means the day appointed under section 91(3) as
  the day on which the provisions of Part 3 come generally into force,

• “Postcomm” means the Postal Services Commission,

• “the transitional period” means the period beginning with the day on
  25which this Act is passed and ending immediately before the
  appointed day, and

• “the 2000 Act” means the Postal Services Act 2000.

The universal postal service

2 (1) Until the first universal postal service order under section 29 comes into
30force—

(a) references in Part 3 to a universal postal service are to be read as
references to a universal postal service as defined by section 4(1) and
(2) of the 2000 Act, and

(b) references in Part 3 to services within the scope of the universal
35postal service are to be read as references to services that
immediately before the appointed day were, according to section 7A
of the 2000 Act, not outside the scope of the universal postal service
in the United Kingdom.

(2) Section 28 (duty to secure provision of universal postal service) is to have
40effect during the transitional period as if the references in that section (other
than in subsection (2)) to OFCOM included Postcomm.

Provisional designation of universal service providers

3 (1) OFCOM may before the appointed day designate provisionally, with effect
from that date, one or more postal operators as universal service providers.

(2) A provisional designation must be—

(a) 5notified to the person designated,

(b) published in such manner as OFCOM consider appropriate for
bringing it to the attention of the persons who, in their opinion, are
likely to be affected by it, and

(c) notified to the European Commission.

(3) 10Whilst in force a provisional designation has the same effect as designation
under section 34.

(4) A provisional designation ceases to have effect on the making of the first
designation under that section.

Regulatory conditions applicable as from appointed day

4 (1) 15OFCOM must determine before the end of the transitional period what
regulatory conditions (“initial conditions”) are to apply to postal operators
on and after the appointed day.

(2) Except as mentioned below, the initial conditions applicable to—

(a) universal service providers, and

(b) 20other postal operators,

must be to substantially the same effect as the licence conditions applying
immediately before the appointed day to the universal service provider or
(as the case may be) in relation to the corresponding description of operator.

(3) Sub-paragraph (2) does not apply to consumer protection conditions (and,
25accordingly, references elsewhere in this Schedule to initial conditions do
not include consumer protection conditions).

(4) If it appears to OFCOM to be unnecessary to maintain any provision made
by the existing licence conditions, sub-paragraph (2) does not require
OFCOM to replicate that provision in the initial conditions.

(5) 30The provisions of Part 3 as to what regulatory conditions may be imposed—

(a) have effect subject to sub-paragraph (2) in their application to the
imposition of initial conditions, and

(b) do not apply in relation to the modification of initial conditions.

5 (1) This paragraph applies to licence conditions—

(a) 35which apply immediately before the appointed day to the universal
service provider or other postal operators, and

(b) which contain provision of a kind that (but for this paragraph) could
not be contained in any regulatory condition under Part 3.

(2) The provision made by those licence conditions is to be regarded for the
40purposes of Part 3 as being capable of being imposed by a regulatory
condition under that Part (to be known as a “transitory condition”).

(3) Accordingly—

(a) the references in paragraph 4 to initial conditions include transitory
conditions, and

(b) paragraph 4(2) and(4) apply in relation to those licence conditions as
they apply in relation to other licence conditions.

(4) A transitory condition is (as a result of this sub-paragraph) to be treated as
revoked at the time when the first universal postal service order under
5section 29 comes into force.

6 (1) If OFCOM modify the initial conditions, they may not impose any
conditions that could not have been imposed under Part 2 of the 2000 Act.

(2) The provisions of Part 3 about—

(a) the procedure for imposing, modifying or revoking regulatory
10conditions,

(b) the enforcement of regulatory conditions, and

(c) appeals,

apply to initial conditions as to other regulatory conditions.

(3) Any decision of OFCOM pursuant to paragraph 4(2) is not to be regarded as
15an initial price control decision for the purposes of section 57.

(4) This paragraph applies in relation to transitory conditions as it applies in
relation to other initial conditions, except that sub-paragraph (2)(a) does not
apply in relation to the revocation of a transitory condition.

Recovery of administrative charges incurred by OFCOM

7 (1) 20This paragraph applies in relation to the first charging year under Schedule
4 (recovery of administrative charges incurred by OFCOM).

(2) OFCOM must prepare a statement of the principles that they are proposing
to apply in fixing administrative charges under paragraph 1 of that Schedule
for that year (and the charges must be fixed in accordance with those
25principles), but there is no requirement for the statement to be in force at the
beginning of that year or at the time the charges are fixed.

(3) Sub-paragraph (2) has effect instead of paragraph 1(2) of that Schedule.

(4) Paragraph 3(5) of that Schedule has effect as if the reference to the statement
of charging principles in force at the beginning of the charging year were a
30reference to the statement of charging principles relating to the charging
year.

Power to extend operation of time-limited licence condition

8 (1) This paragraph applies if it appears to the Secretary of State—

(a) that a licence condition applicable before the appointed day to the
35universal service provider depends for its continuing operation on
forecast figures indicating the volume of business in future periods
(“index years”) set out in the condition, and

(b) that the index years and forecast figures set out in the condition do
not extend beyond the index year ending 31 March 2011.

(2) 40The Secretary of State may by order amend that condition so as to specify a
forecast figure for the index year ending 31 March 2012.

(3) The power of the Secretary of State is limited to inserting a forecast figure
produced by applying the same methods as were used by Postcomm to

determine the forecast figure for the index years presently set out in the
condition.

(4) If it appears to the Secretary of State that Postcomm has produced, using
those methods, a forecast figure for the index year ending 31 March 2012, the
5Secretary of State may adopt its figure and need not repeat, or examine the
basis of, the work done by it in producing that figure.

(5) Before making an order under this paragraph the Secretary of State must—

(a) consult the universal service provider and such other persons as the
Secretary of State considers appropriate, and

(b) 10consider any representations made before the end of the consultation
period.

(6) The consultation period, in relation to a person, is the period of 21 days
beginning with the day on which the person is consulted.

(7) The requirements of sub-paragraph (5) may be met by consultation and
15consideration before the passing of this Act.

(8) If an order under this paragraph is made before the appointed day, the
reference in paragraph 4(2) to the licence conditions applicable immediately
before that day is to be read accordingly as a reference to the conditions as
amended by the order.

20Anticipatory exercise of powers

9 (1) During the transitional period the provisions of Part 3 relating to—

(a) the designation of a universal service provider, and

(b) the imposition of regulatory conditions on postal operators,

have effect so far as necessary to enable OFCOM to undertake work with a
25view to making a designation, or imposing regulatory conditions, under that
Part as soon as practicable on or after the appointed day.

(2) The work referred to in sub-paragraph (1) includes, in particular,
consultation with existing licensed operators and others in connection with
the imposition of regulatory conditions.

10 30The provisions of Part 3 also come into force at the beginning of the
transitional period so far as necessary to enable the making of any
regulations, order or scheme by OFCOM or the Secretary of State.

11 (1) The provisions of section 53 and Schedule 8 (information) have effect during
the transitional period so far as necessary for the purposes of the carrying
35out by OFCOM of their functions during or after that period.

(2) The provisions of section 54 (general restriction on disclosure of
information) have effect accordingly.

Reliance by OFCOM on work done by Postcomm

12 In carrying out any of their functions under Part 3 OFCOM may rely on
40anything done by or in relation to Postcomm at any time before the passing
of this Act.

Consultation on exercise of existing regulatory functions

13 During the transitional period Postcomm must consult OFCOM before
taking any step with a view to modifying or revoking the conditions of a
licence under Part 2 of the 2000 Act.

5Enforcement action by Postcomm etc

14 (1) This paragraph applies to a contravention of a condition of a licence under
Part 2 of the 2000 Act in respect of which Postcomm was in the process of
doing something immediately before the day on which paragraph 3 of
Schedule 12 comes into force (repeal of Part 2 of 2000 Act).

(2) 10OFCOM are to have the power to do anything that they consider
appropriate to do in relation to the contravention in question.

(3) In particular, OFCOM may continue or discontinue any legal proceedings
under section 30 of the 2000 Act (financial penalties) begun by Postcomm in
respect of the contravention in question.

(4) 15References in this paragraph to a contravention include anything that
Postcomm considered might be a contravention.

15 (1) This paragraph applies if, at any time on or after the day on which
paragraph 3 of Schedule 12 comes into force, OFCOM are satisfied that a
person has contravened a condition of a licence under Part 2 of the 2000 Act.

(2) 20Despite the repeal of that Part, OFCOM are to have—

(a) the power to begin legal proceedings under section 30 of the 2000 Act
in respect of the contravention in question, and

(b) the power to do anything else that they consider appropriate to do in
relation to it.

25References to universal service provider

16 References in this Schedule to the universal service provider, in relation to
periods before the appointed day, are to the operator whose identity is for
the time being notified to the European Commission as being the provider
of a universal postal service in the United Kingdom.

30Saving

17 Nothing in this Schedule is to be read as impliedly restricting the generality
of the power to make transitional provision by order under section 91(4).

Section 71

SCHEDULE 10 Conduct of postal administration

Part 1 Modifications of Schedule B1 to 1986 Act

5Introductory

1 Paragraphs 1, 40 to 50, 54, 59 to 68, 70 to 75, 79, 83 to 91, 98 to 107, 109 to 111
and 112 to 116 of Schedule B1 to the 1986 Act are to have effect in relation to
postal administration orders as they have effect in relation to administration
orders under that Schedule, but with the modifications set out in this Part of
10this Schedule.

General modifications of the applicable provisions

2 Those paragraphs are to have effect as if—

(a) for “administration application”, in each place, there were
substituted “postal administration application”,

(b) 15for “administration order”, in each place, there were substituted
“postal administration order”,

(c) for “administrator”, in each place, there were substituted “postal
administrator”,

(d) for “enters administration”, in each place, there were substituted
20“enters postal administration”,

(e) for “in administration”, in each place, there were substituted “in
postal administration”, and

(f) for “purpose of administration”, in each place (other than in
paragraph 111(1)), there were substituted “objective of the postal
25administration”.

Specific modifications

3 Paragraph 1 (administration) is to have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) In this Schedule “postal administrator”, in relation to a
30company, means a person appointed by the court for the
purposes of a postal administration order to manage its
affairs, business and property.”, and

(b) in sub-paragraph (2), for “Act” there were substituted “Schedule”.

4 Paragraph 40 (dismissal of pending winding-up petition) is to have effect as
35if sub-paragraphs (1)(b), (2) and (3) were omitted.

5 Paragraph 42 (moratorium on insolvency proceedings) is to have effect as if
sub-paragraphs (4) and (5) were omitted.

6 Paragraph 44 (interim moratorium) is to have effect as if sub-paragraphs (2)
to (4), (6) and (7)(a) to (c) were omitted.

7 Paragraph 46(6) (date for notifying administrator’s appointment) is to have
effect as if for paragraphs (a) to (c) there were substituted “the date on which
the postal administration order comes into force”.

8 Paragraph 49 (administrator’s proposals) is to have effect as if—

(a) 5in sub-paragraph (2)(b) for “objective mentioned in paragraph
3(1)(a) or (b) cannot be achieved” there were substituted “objective of
the postal administration should be achieved by means other than
just a rescue of the company as a going concern”, and

(b) in sub-paragraph (4), after paragraph (a) there were inserted—

“(aa) 10to the Secretary of State and OFCOM,”.

9 Paragraph 54 is to have effect as if the following were substituted for it—

“54 (1) The postal administrator of a company may on one or more
occasions revise the proposals included in the statement made
under paragraph 49 in relation to the company.

(2) 15If the postal administrator thinks that a revision is substantial, the
postal administrator must send a copy of the revised proposals—

(a) to the registrar of companies,

(b) to the Secretary of State and OFCOM,

(c) to every creditor of the company of whose claim and
20address the postal administrator is aware, and

(d) to every member of the company of whose address the
postal administrator is aware.

(3) A copy sent in accordance with sub-paragraph (2) must be sent
within the prescribed period.

(4) 25The postal administrator is to be taken to have complied with sub-
paragraph (2)(d) if the postal administrator publishes, in the
prescribed manner, a notice undertaking to provide a copy of the
revised proposals free of charge to any member of the company
who applies in writing to a specified address.

(5) 30The postal administrator who fails without reasonable excuse to
comply with this paragraph commits an offence.”

10 Paragraph 60 (powers of an administrator) is to have effect as if the existing
text were to become sub-paragraph (1) and as if after that sub-paragraph
there were inserted—

“(2) 35The postal administrator of a company has the power to act on
behalf of the company for the purposes of any enactment which
confers a power on the company or imposes a duty on it.

(3) In sub-paragraph (2) “enactment” has the same meaning as in the
Postal Services Act 2011 (see section 88).”

11 40Paragraph 68 (management duties of an administrator) is to have effect as
if—

(a) in sub-paragraph (1), for paragraphs (a) to (c) there were
substituted—

“the proposals as—

(a) 45set out in the statement made under paragraph 49
in relation to the company, and

(b) from time to time revised under paragraph 54,

for achieving the objective of the postal administration.”,
and”

(b) in sub-paragraph (3), for paragraphs (a) to (d) there were substituted
5“the directions are consistent with the achievement of the objective
of the postal administration”.

12 Paragraph 71(3)(b) (charged property: non-floating charge) is to have effect
as if for “market” there were substituted “the appropriate”.

13 Paragraph 72(3)(b) (hire-purchase property) is to have effect as if for
10“market” there were substituted “the appropriate”.

14 Paragraph 73(3) (protection for secured or preferential creditor) is to have
effect as if for “or modified” there were substituted “under paragraph 54”.

15 Paragraph 74 (challenge to administrator’s conduct) is to have effect as if—

(a) for sub-paragraph (2) there were substituted—

“(2) 15If a company is in postal administration, a person
mentioned in sub-paragraph (2A) may apply to the court
claiming that the postal administrator is acting in a manner
preventing the achievement of the objective of the postal
administration as quickly and efficiently as is reasonably
20practicable.

(2A) The persons who may apply to the court are—

(a) the Secretary of State,

(b) with the consent of the Secretary of State, OFCOM,

(c) a creditor or member of the company.”,

(b) 25in sub-paragraph (6)—

(i) at the end of paragraph (b) there were inserted “or”, and

(ii) paragraph (c) (and the “or” before it) were omitted, and

(c) after that sub-paragraph there were inserted—

“(7) In the case of a claim made otherwise than by the Secretary
30of State or OFCOM, the court may grant a remedy or relief
or make an order under this paragraph only if it has given
the Secretary of State or OFCOM a reasonable opportunity
of making representations about the claim and the
proposed remedy, relief or order.

(8) 35The court may grant a remedy or relief or make an order
on an application under this paragraph only if it is
satisfied, in relation to the matters that are the subject of
the application, that the postal administrator—

(a) is acting,

(b) 40has acted, or

(c) is proposing to act,

in a way that is inconsistent with the achievement of the
objective of the postal administration as quickly and as
efficiently as is reasonably practicable.

(9) 45Before the making of an order of the kind mentioned in
sub-paragraph (4)(d)—

(a) the court must notify the postal administrator of
the proposed order and of a period during which
the postal administrator is to have the opportunity
of taking steps falling within sub-paragraphs (10)
5to (12), and

(b) the period notified must have expired without the
taking of such of those steps as the court thinks
should have been taken,

and that period must be a reasonable period.

(10) 10In the case of a claim under sub-paragraph (1)(a), the steps
referred to in sub-paragraph (9) are—

(a) ceasing to act in a manner that unfairly harms the
interests to which the claim relates,

(b) remedying any harm unfairly caused to those
15interests, and

(c) steps for ensuring that there is no repetition of
conduct unfairly causing harm to those interests.

(11) In the case of a claim under sub-paragraph (1)(b), the steps
referred to in sub-paragraph (9) are steps for ensuring that
20the interests to which the claim relates are not unfairly
harmed.

(12) In the case of a claim under sub-paragraph (2), the steps
referred to in sub-paragraph (9) are—

(a) ceasing to act in a manner preventing the
25achievement of the objective of the postal
administration as quickly and as efficiently as is
reasonably practicable,

(b) remedying the consequences of the postal
administrator having acted in such a manner, and

(c) 30steps for ensuring that there is no repetition of
conduct preventing the achievement of the
objective of the postal administration as quickly
and as efficiently as is reasonably practicable.”

16 Paragraph 75(2) (misfeasance) is to have effect as if after paragraph (b) there
35were inserted—

“(ba) a person appointed as an administrator of the
company under the provisions of this Act, as they
have effect in relation to administrators other than
postal administrators,”.

17 40Paragraph 79 (end of administration) is to have effect as if—

(a) for sub-paragraphs (1) and (2) there were substituted—

“(1) On an application made by a person mentioned in sub-
paragraph (2), the court may provide for the appointment
of a postal administrator of a company to cease to have
45effect from a specified time.

(2) An application may be made to the court under this
paragraph—

(a) by the Secretary of State,

(b) with the consent of the Secretary of State, by
OFCOM, or

(c) with the consent of the Secretary of State, by the
postal administrator.”, and

(b) 5sub-paragraph (3) were omitted.

18 Paragraph 83(3) (notice to registrar when moving to voluntary liquidation)
is to have effect as if after “may” there were inserted “, with the consent of
the Secretary of State or of OFCOM,”.

19 (1) Paragraph 84 (notice to registrar when moving to dissolution) is to have
10effect as if—

(a) in sub-paragraph (1), for “to the registrar of companies” there were
substituted—

“(a) to the Secretary of State and OFCOM, and

(b) if directed to do so by either the Secretary of State
15or OFCOM, to the registrar of companies.”,

(b) sub-paragraph (2) were omitted, and

(c) in sub-paragraphs (3) to (6), for “(1)”, in each place, there were
substituted “(1)(b)”.

20 Paragraph 87(2) (resignation of administrator) is to have effect as if for
20paragraphs (a) to (d) there were substituted “by notice in writing to the
court”.

21 Paragraph 89(2) (administrator ceasing to be qualified) is to have effect as if
for paragraphs (a) to (d) there were substituted “to the court”.

22 Paragraph 90 (filling vacancy in office of administrator) is to have effect as if
25for “Paragraphs 91 to 95 apply” there were substituted “Paragraph 91
applies”.

23 Paragraph 91 (vacancies in court appointments) is to have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) The court may replace the postal administrator on an
30application made—

(a) by the Secretary of State,

(b) with the consent of the Secretary of State, by
OFCOM, or

(c) where more than one person was appointed to act
35jointly as the postal administrator, by any of those
persons who remains in office.”, and

(b) sub-paragraph (2) were omitted.

24 Paragraph 98 (discharge from liability on vacation of office) is to have effect
as if sub-paragraphs (2)(b) and (3) were omitted.

25 40Paragraph 99 (charges and liabilities upon vacation of office by
administrator) is to have effect as if—