Postal Services Bill (HL Bill 66)

(4) The maximum penalty which may be imposed by the regulations for failure to
comply with any of its provisions must not exceed the maximum penalty for
the time being specified in section 37(6) of that Act.

(5) OFCOM must establish and maintain a register which records every
5notification given to them under the regulations.

(6) Information recorded in the register must be recorded in such manner as
OFCOM consider appropriate.

(7) OFCOM must publish a notice setting out—

(a) the times at which the register is for the time being available for public
10inspection, and

(b) the fees that must be paid for, or in connection with, an inspection of
the register.

(8) The notice must be published in such manner as OFCOM consider appropriate
for bringing it to the attention of the persons who, in their opinion, are likely to
15be affected by it.

(9) OFCOM must make the register available for public inspection—

(a) during such hours, and

(b) on payment of such fees,

as are set out in the notice for the time being in force under subsection (7).

(10) 20Regulations under this section are subject to negative resolution procedure.

47 Essential conditions

(1) OFCOM may impose an essential condition on—

(a) every postal operator, or

(b) every postal operator of a description specified in the condition.

(2) 25An essential condition is a condition containing such obligations as OFCOM
consider necessary to impose for, or in connection with, any one or more of the
following purposes—

(a) safeguarding confidentiality in connection with the sending,
conveyance and delivery of letters,

(b) 30safeguarding security where dangerous goods are transported,

(c) safeguarding the confidentiality of information conveyed,

(d) guarding against the theft or loss of or damage to postal packets, and

(e) securing the delivery of postal packets to the intended addressees.

48 General access conditions

(1) 35OFCOM may impose a general access condition on a particular postal operator
(or operators).

(2) A general access condition is a condition requiring the operator to do either or
both of the following—

(a) to give access to other postal operators, or users of postal services, to the
40operator’s postal infrastructure or any service within the scope of the
universal postal service which it provides, and

(b) to maintain a separation for accounting purposes between such
different matters relating to access of a kind within paragraph (a)

(including proposed or potential access of that kind) as OFCOM may
direct.

(3) An operator’s “postal infrastructure” includes both physical infrastructure
(such as letter boxes) and infrastructure in non-physical form (such as
5information relating to postcodes or addresses or arrangements made with
others for the provision of any service).

(4) OFCOM may impose a general access condition only if it appears to them that
the condition is necessary for either or both of the following purposes—

(a) protecting the interests of the users of postal services, and

(b) 10promoting effective competition.

(5) In deciding what obligations to impose in general access conditions in a
particular case, OFCOM must (in addition to taking into account anything
relevant for the purpose of performing their duty under section 28) take into
account, in particular, the following factors—

(a) 15the technical and economic viability, having regard to the state of
market development, of installing and using facilities that would make
the proposed access unnecessary,

(b) the feasibility of giving the proposed access,

(c) the investment made by the postal operator in relation to the matters in
20respect of which access is proposed,

(d) the need to secure effective competition in the long term, and

(e) any rights to intellectual property that are relevant to the proposal.

(6) For the purposes of this section a reference to giving a person access to an
operator’s postal infrastructure includes giving a person an entitlement to use,
25be provided with or become a party to any services, facilities or arrangements
comprised in the infrastructure.

(7) In Schedule 3—

(a) Part 1 makes provision about the kind of matters that may be included
in general access conditions, and

(b) 30Part 2 makes provision about the resolution of access disputes by
OFCOM.

49 Consumer protection conditions

(1) OFCOM may impose a consumer protection condition on—

(a) every postal operator, or

(b) 35every postal operator of a specified description.

(2) A consumer protection condition is a condition requiring the operator to do
one or more of the following—

(a) to assume specified liability in respect of specified loss of or damage to
specified postal packets,

(b) 40to establish and maintain procedures, standards and policies with
respect to consumer protection matters, and

(c) to make payments relating to qualifying consumer expenses of the
National Consumer Council or the Office of Fair Trading.

(3) The reference in subsection (2)(b) to consumer protection matters is to—

(a) 45the handling of complaints made to postal operators by users of their
services,

(b) the resolution of disputes between postal operators and users of their
services,

(c) the provision of remedies and redress in respect of matters that form
the subject-matter of such complaints or disputes,

(d) 5the information that is to be made available by postal operators to users
of their services about service standards and about the rights of those
users, and

(e) anything else appearing to OFCOM to be necessary to secure effective
protection for those users.

(4) 10The reference in subsection (2)(c) to qualifying consumer expenses of the
National Consumer Council or the Office of Fair Trading is to—

(a) such proportion of the expenses of the National Consumer Council as
the Secretary of State considers reasonable having regard to the
functions exercisable by it in relation to users of postal services, and

(b) 15such proportion of the expenses of the Office of Fair Trading incurred
in connection with its support of any public consumer advice scheme
as the Secretary of State considers reasonable having regard to the
functions under the scheme exercisable in relation to those users.

(5) In imposing a consumer protection condition, OFCOM must (so far as they
20consider appropriate) secure that—

(a) the procedures for the handling of complaints and the resolution of
disputes are easy to use, transparent and effective and otherwise
facilitate the settling of disputes fairly and promptly,

(b) users have the right to use those procedures free of charge, and

(c) 25if a postal operator contravenes a consumer protection condition, the
operator follows such procedures as may be required by the condition.

(6) The Secretary of State may direct OFCOM to include provision within
subsection (2)(c) in consumer protection conditions.

(7) In this section and section 50 any reference, in relation to postal operators, to
30users of their services is to users of any of the postal services provided by the
operators.

(8) In this section “specified” means specified in the consumer protection
condition.

50 Provision that may be made by consumer protection conditions

(1) 35A consumer protection condition may require postal operators to be members
of an approved redress scheme.

(2) A “redress scheme” is a scheme under which complaints about postal
operators by users of their services may be made to, and investigated and
determined by, a person who is independent of postal operators and OFCOM.

(3) 40A redress scheme is “approved” if it is approved by OFCOM in accordance
with Schedule 5.

(4) For the purposes of the law relating to defamation, proceedings under an
approved redress scheme are to be treated in the same way as proceedings
before a court.

(5) 45A consumer protection condition may require postal operators—

(a) to provide information to OFCOM with respect to the levels of
compliance with the standards for the handling of complaints, and

(b) to publish information about the number of complaints made about
them (whether under an approved redress scheme or otherwise) and
5the way in which the complaints have been dealt with.

(6) Requirements may be contained in the condition as to the times at which, and
the manner in which, any information is to be published as a result of
subsection (5)(b).

(7) A consumer protection condition imposed on a universal service provider
10must include a requirement within subsection (5)(b).

General provisions

51 Imposition, modification or revocation of regulatory conditions

Schedule 6 contains general provision about the imposition of regulatory
conditions and their modification or revocation.

52 15Enforcement of regulatory requirements

Schedule 7 makes provision for the enforcement of regulatory requirements
imposed by OFCOM in carrying out their functions in relation to postal
services.

53 Information

(1) 20Schedule 8 makes provision for requiring information to be provided to
OFCOM for the purpose of carrying out their functions in relation to postal
services or for related purposes.

(2) In that Schedule—

(a) Part 1 makes provision authorising OFCOM to require information to
25be provided to them,

(b) Part 2 makes provision for the enforcement of those requirements, and

(c) Part 3 contains supplementary provision.

(3) Nothing in Schedule 7 to the Postal Services Act 2000 (disclosure of
information) prevents the Postal Services Commission from disclosing
30information to OFCOM for the purposes of OFCOM’s functions in relation to
postal services.

54 General restriction on disclosure of information

(1) Information that—

(a) is obtained as a result of this Part, and

(b) 35relates to the affairs of an individual or to a particular business,

must not be disclosed during the lifetime of the individual or so long as the
business is carried on, except as provided by this section.

(2) Disclosure is permitted—

(a) with the consent of the individual or the person for the time being
40carrying on the business,

(b) for the purpose of facilitating the carrying out by OFCOM of any of
their functions,

(c) for the purpose of facilitating the carrying out by the Secretary of State,
the Treasury or the Competition Commission of any of their functions
5under this Act,

(d) for the purpose of facilitating the carrying out by a prescribed body or
other person of any functions under a prescribed enactment,

(e) in connection with the investigation of any criminal offence or for the
purposes of any criminal proceedings,

(f) 10for the purposes of any civil proceedings brought as a result of this Part
or any prescribed enactment,

(g) in pursuance of an EU obligation, or

(h) in any other prescribed circumstances or for any other prescribed
purpose.

(3) 15In subsection (2) “prescribed” means prescribed by an order of the Secretary of
State.

(4) An order under subsection (3) is subject to affirmative resolution procedure.

(5) This section does not apply to information that has been made available to the
public by being disclosed in circumstances in which, or for a purpose for
20which, disclosure is not precluded by this section.

(6) This section also does not apply to information that is subject to the disclosure
regime in Part 9 of the Enterprise Act 2002 as a result of—

(a) section 393(8) of the Communications Act 2003 (information obtained
by OFCOM in exercise of competition functions), or

(b) 25section 29(3) of the Consumers, Estate Agents and Redress Act 2007
(information obtained by the National Consumer Council).

(7) A person who discloses information in contravention of this section commits
an offence.

(8) A person guilty of an offence under this section is liable—

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

(b) on conviction on indictment, to a fine or imprisonment for a term not
exceeding two years or both.

Appeals

55 35Decisions by OFCOM to impose regulatory conditions, penalties etc

(1) For the purposes of this section a “qualifying decision” means—

(a) a decision to impose or modify a regulatory condition,

(b) a decision to give, modify or withdraw a direction, consent or approval
that falls within paragraph 2 of Schedule 6,

(c) 40a decision to impose a penalty, or give or modify a direction, under any
provision of Schedule 4, 7 or 8,

(d) a decision to give or modify a direction under section 89A or 116(2A) of
the Postal Services Act 2000 (schemes as to terms and conditions for
provision of postal services, and the Postcode Address File), or

(e) a decision to give a direction under section 25(5) of the Consumers,
Estate Agents and Redress Act 2007 (enforcement of requirements to
give information to the National Consumer Council).

(2) A person affected by a qualifying decision may appeal against it to the
5Competition Appeal Tribunal (“the CAT”).

(3) The means of making an appeal is by sending the CAT a notice of appeal in
accordance with rules made under section 15 of the Enterprise Act 2002.

(4) The notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in those rules.

(5) 10In determining an appeal under this section the CAT must apply the same
principles as would be applied by a court on an application for judicial review.

(6) The CAT must either—

(a) dismiss the appeal, or

(b) quash the whole or part of the qualifying decision to which the appeal
15relates.

(7) If the CAT quashes the whole or part of a qualifying decision, it may refer the
matter back to the person who made the decision with a direction to reconsider
and make a new decision in accordance with its ruling.

(8) The CAT may not direct the person who made the decision to take any action
20that the person would not otherwise have the power to take in relation to the
decision.

(9) Except in the case of a decision to impose a penalty, or give or modify a
direction, under Schedule 4, 7 or 8, the effect of a qualifying decision is not
suspended by the making of an appeal against the decision under this section.

56 25Appeals from the CAT

(1) An appeal lies to the appropriate court on any point of law arising from a
decision of the CAT under section 55.

(2) An appeal under this section may be brought by—

(a) a party to the proceedings before the CAT, or

(b) 30any other person who has a sufficient interest in the matter.

(3) An appeal under this section requires the permission of the CAT or the
appropriate court.

(4) In this section “the appropriate court” means—

(a) in relation to England and Wales and Northern Ireland, the Court of
35Appeal, and

(b) in relation to Scotland, the Court of Session.

57 Price control decisions

(1) A person affected by a price control decision may appeal against it by sending
a notice of appeal to OFCOM within the period of two months beginning with
40the day on which the decision is published.

(2) The notice of appeal must set out the grounds of appeal in sufficient detail to
indicate the error (or errors) which the appellant contends OFCOM made.

(3) OFCOM must refer any appeal made in accordance with this section (and with
rules made under section 58) to the Competition Commission (“the
Commission”) as soon as reasonably practicable after it is made.

(4) The making of an appeal against a decision does not suspend the effect of the
5decision.

(5) The Commission must determine an appeal before the end of—

(a) the period of 4 months beginning with the day on which OFCOM refer
the appeal to it, or

(b) if the decision appealed against is not an initial price control decision
10and the Commission considers that the circumstances of the case are
exceptional, the period of 6 months beginning with that day.

If paragraph (b) applies, the Commission must, before the end of the period
mentioned in paragraph (a), publish its reasons for considering that the
circumstances of the case are exceptional.

(6) 15On determining the appeal, the Commission must—

(a) dismiss the appeal,

(b) allow the appeal and make its own decision on the subject matter of the
appeal, or

(c) quash the whole or part of the price control decision to which the
20appeal relates.

(7) The Commission may allow the appeal, or quash the whole or part of the price
control decision to which the appeal relates, only if it considers that OFCOM
made a material error.

(8) If the Commission quashes the whole or part of a price control decision, it may
25refer the matter back to OFCOM with a direction to reconsider and make a new
decision in accordance with its ruling.

(9) The Commission may not direct OFCOM to take any action that they would
not otherwise have the power to take in relation to the decision.

(10) OFCOM must give effect to any decision of the Commission under subsection
30(6)(b) as soon as is reasonably practicable after it is made.

(11) The Commission may investigate any matter or do any other thing for the
purpose of making a decision under subsection (6)(b) or (c).

(12) Any decision made by the Commission under subsection (6) other than one
relating to an initial price control decision is a qualifying decision for the
35purposes of section 55.

(13) In this section—

• a “price control decision” means—

  (a)

  a decision of OFCOM as to the tariffs that are to be used as
  mentioned in section 35(4) (designated USP condition: tariffs),
  40or

  (b)

  a decision of OFCOM (other than under Part 2 of Schedule 3) as
  to prices that may be charged for the giving of access under an
  access condition, and

• an “initial price control decision” means—

  (a)

  45the first decision of OFCOM within paragraph (a) of the
  definition of “price control decision”, or

  Postal Services BillPage 37

  (b)

  the first decision of OFCOM within paragraph (b) of that
  definition.

58 Section 57: supplementary

(1) The Commission may make rules about the making, conduct and disposal of
5appeals under section 57.

(2) The rules 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 or observations at an oral hearing.

(3) The rules may make different provision for different cases.

(4) 10The Commission must publish the rules in such manner as it considers
appropriate for the purpose of bringing them to the attention of those likely to
be affected by them.

(5) Before making the rules, the Commission must consult such persons as it
considers appropriate.

(6) 15The Secretary of State may by order—

(a) apply any of sections 109 to 117 of the Enterprise Act 2002
(investigation powers of the Commission), with or without
modifications, in relation to appeals made under section 57, and

(b) make provision for and in connection with the extension of the period
20within which appeals must be determined in cases where requirements
imposed under section 109 of that Act (as applied) have not been
complied with.

(7) An order under subsection (6) applying an enactment under which a criminal
or civil penalty could be imposed may not provide for the penalty to be greater
25than that which could be imposed under the enactment.

(8) An order under subsection (6) is subject to negative resolution procedure.

Supplementary and consequential provisions

59 Duties in relation to social and environmental matters

(1) The Secretary of State may from time to time give guidance about the making
30by OFCOM, in the carrying out of their functions in relation to postal services,
of a contribution towards the attainment of any social or environmental
policies set out or referred to in the guidance.

(2) OFCOM must, when carrying out their functions in relation to postal services,
have regard to any guidance given under subsection (1).

(3) 35Before giving any such guidance, the Secretary of State must consult—

(a) OFCOM,

(b) the National Consumer Council, and

(c) such other persons as the Secretary of State considers appropriate.

(4) A draft of any guidance proposed to be given under subsection (1) must be laid
40before Parliament.

(5) Guidance may not be given under subsection (1) until after the end of the
period of 40 days beginning with the day on which the draft is laid before
Parliament.

(6) In calculating that 40 day period, no account is to be taken of any time during
5which—

(a) Parliament is dissolved or prorogued, or

(b) both Houses of Parliament are adjourned for more than four days.

(7) If, before the end of that 40 day period, either House of Parliament resolves that
the guidance should not be given, the Secretary of State must not give it.

(8) 10The Secretary of State must publish any guidance given under subsection (1) in
such way as the Secretary of State considers appropriate.

60 UK postage stamps bearing image of Her Majesty

(1) The Secretary of State may give a direction to a universal service provider
requiring the provider to do either or both of the following—

(a) 15to issue United Kingdom postage stamps bearing the image of Her
Majesty (“relevant stamps”) in cases specified in the direction, and

(b) to comply with provision specified in the direction in relation to any
relevant stamps that the provider is required or proposes to issue.

(2) A direction under subsection (1)(b) must include provision for relevant stamps
20not to be issued without the approval of Her Majesty.

(3) The provision that may be contained in a direction under subsection (1)(b)
includes—

(a) provision in relation to the design or subject-matter of relevant stamps
(including the frequency of designs in any period specified in the
25direction), and

(b) provision conferring functions on persons (or a committee of persons).

(4) A direction under this section must be in writing.

(5) A direction may be varied or revoked by a further direction.

(6) A person to whom a direction has been given has a duty to comply with it.

(7) 30That duty is enforceable in civil proceedings by the Secretary of State—

(a) for an injunction,

(b) for specific performance of a statutory duty under section 45 of the
Court of Session Act 1988, or

(c) for any other appropriate remedy or relief.

61 35Orders, schemes and regulations made by OFCOM

Section 403 of the Communications Act 2003 (regulations and orders made by
OFCOM) applies to any power of OFCOM under this Part to make an order, a
scheme or regulations.

62 Abolition of Postal Services Commission etc

(1) 40The Postal Services Commission is abolished.

(2) In section 30 of, and Schedule 2 to, the Communications Act 2003 (transfers of
property etc from pre-commencement regulators), each reference to a pre-
commencement regulator includes the Postal Services Commission.