Postal Services Bill (HL Bill 70)

80 Indemnities

(1) This section applies if a postal administration order has been made in relation
to a company.

(2) The Secretary of State may, with the consent of the Treasury, agree to
5indemnify persons in respect of one or both of the following—

(a) liabilities incurred in connection with the exercise and performance of
powers and duties by the postal administrator, and

(b) loss or damage sustained in that connection.

(3) The agreement may be made in whatever manner, and on whatever terms, the
10Secretary of State considers appropriate.

(4) As soon as practicable after agreeing to indemnify persons under this section,
the Secretary of State must lay a statement of the agreement before Parliament.

(5) If sums are paid by the Secretary of State in consequence of an indemnity
agreed to under this section, the company must pay the Secretary of State—

(a) 15such amounts in or towards the repayment to the Secretary of State of
those sums as the Secretary of State may, with the consent of the
Treasury, direct, and

(b) interest on amounts outstanding under this subsection at such rates as
the Secretary of State may, with the consent of the Treasury, direct.

(6) 20The payments must be made by the company at such times and in such manner
as the Secretary of State may, with the consent of the Treasury, determine.

(7) Subsection (5) does not apply in the case of a sum paid by the Secretary of State
for indemnifying a person in respect of a liability to the company.

(8) If a sum has been paid out in consequence of an indemnity agreed to under this
25section, the Secretary of State must lay a statement relating to that sum before
Parliament—

(a) as soon as practicable after the end of the financial year in which the
sum is paid out, and

(b) if subsection (5) applies to the sum, as soon as practicable after the end
30of each subsequent financial year in relation to which the repayment
condition has not been met.

(9) The repayment condition is met in relation to a financial year if—

(a) the whole of the sum has been repaid to the Secretary of State before the
beginning of the year, and

(b) 35the company was not at any time during the year liable to pay interest
on amounts that became due in respect of the sum.

(10) The power of the Secretary of State to agree to indemnify persons—

(a) is confined to a power to agree to indemnify persons in respect of
liabilities, loss and damage incurred or sustained by them as relevant
40persons, but

(b) includes power to agree to indemnify persons (whether or not they are
identified or identifiable at the time of the agreement) who
subsequently become relevant persons.

(11) The following are relevant persons for the purposes of this section—

(a) 45the postal administrator,

(b) an employee of the postal administrator,

(c) a partner or employee of a firm of which the postal administrator is a
partner,

(d) a partner or employee of a firm of which the postal administrator is an
employee,

(e) 5a partner of a firm of which the postal administrator was an employee
or partner at a time when the order was in force,

(f) a body corporate which is the employer of the postal administrator,

(g) an officer, employee or member of such a body corporate, and

(h) a Scottish firm which is the employer of the postal administrator or of
10which the postal administrator is a partner.

(12) For the purposes of subsection (11)—

(a) references to the postal administrator are to be read, where two or more
persons are appointed as the postal administrator, as references to any
one or more of them, and

(b) 15references to a firm of which a person was a partner or employee at a
particular time include a firm which holds itself out to be the successor
of a firm of which the person was a partner or employee at that time.

(13) The Secretary of State must pay sums received as a result of subsection (5) into
the Consolidated Fund.

81 20Guarantees where postal administration order is made

(1) This section applies if a postal administration order has been made in relation
to a company.

(2) The Secretary of State may, with the consent of the Treasury, guarantee—

(a) the repayment of any sum borrowed by the company while that order
25is in force,

(b) the payment of interest on any sum borrowed by the company while
that order is in force, and

(c) the discharge of any other financial obligation of the company in
connection with the borrowing of any sum while that order is in force.

(3) 30The Secretary of State may give the guarantees in such manner, and on such
terms, as the Secretary of State considers appropriate.

(4) As soon as practicable after giving a guarantee under this section, the Secretary
of State must lay a statement of the guarantee before Parliament.

(5) If sums are paid out by the Secretary of State under a guarantee given under
35this section, the company must pay the Secretary of State—

(a) such amounts in or towards the repayment to the Secretary of State of
those sums as the Secretary of State may, with the consent of the
Treasury, direct, and

(b) interest on amounts outstanding under this subsection at such rates as
40the Secretary of State may, with the consent of the Treasury, direct.

(6) The payments must be made by the company at such times, and in such
manner, as the Secretary of State may, with the consent of the Treasury, from
time to time direct.

(7) If a sum has been paid out under a guarantee given under this section, the
45Secretary of State must lay a statement relating to that sum before Parliament—

(a) as soon as practicable after the end of the financial year in which the
sum is paid out, and

(b) as soon as practicable after the end of each subsequent financial year in
relation to which the repayment condition has not been met.

(8) 5The repayment condition is met in relation to a financial year if—

(a) the whole of the sum has been repaid to the Secretary of State before the
beginning of the year, and

(b) the company was not at any time during the year liable to pay interest
on amounts that became due in respect of the sum.

(9) 10The Secretary of State must pay sums received as a result of subsection (5) into
the Consolidated Fund.

(10) In this section “financial year” means a period of 12 months ending with 31
March.

Modifications of regulatory conditions etc

82 15Regulatory powers exercisable during postal administration

(1) This section applies if a postal administration order has been made.

(2) The Secretary of State may by order modify the universal postal service order
made by OFCOM under section 30.

An order under this subsection is subject to negative resolution procedure.

(3) 20Before modifying that order, the Secretary of State must consult—

(a) OFCOM, and

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

(4) If the Secretary of State modifies that order, it is for the Secretary of State
(rather than OFCOM) to notify the European Commission of the modification.

(5) 25The Secretary of State may by order amend section 31.

(6) An order under subsection (5)—

(a) is subject to approval after being made, and

(b) may include such amendments of Part 3 as the Secretary of State
considers necessary or expedient in consequence of any provision
30made by the order.

(7) The Secretary of State may modify or revoke any regulatory condition if the
Secretary of State considers it appropriate to do so for, or in connection with,
achieving the objective of the postal administration.

(8) The Secretary of State’s power to make modifications includes power to make
35incidental, supplementary, consequential, transitional or transitory
modifications.

(9) Before modifying or revoking a regulatory condition, the Secretary of State
must consult—

(a) OFCOM,

(b) 40the person whose condition is being modified or revoked, and

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

(10) The Secretary of State must publish every modification or revocation of a
regulatory condition made under this section.

(11) The publication must be in such manner as the Secretary of State considers
appropriate.

(12) 5The provisions of Part 3 (including section 29) other than—

(a) sections 57 to 60 (appeals), and

(b) paragraph 3 of Schedule 6 (procedure for modifying or revoking
regulatory conditions),

apply in relation to the modification or revocation by the Secretary of State of
10regulatory conditions as they apply in relation to the modification or
revocation by OFCOM of regulatory conditions.

(13) The power conferred by subsection (2) or (5) may not be exercised at any time
after the postal administration order has ceased to be in force.

(14) Any duty to consult under this section may be met by consultation before the
15making of the postal administration order.

83 Regulatory conditions to secure funding of postal administration order

(1) The modifications that may be made under section 82 include, in particular,
modifications of any price control provision contained in a regulatory
condition for the purpose of raising such amounts as may be determined by the
20Secretary of State.

(2) The modified condition may require the person on whom it is imposed to pay
those amounts to such persons as may be so determined for the purpose of—

(a) their applying those amounts in making good any shortfall in the
property available for meeting the expenses of the postal
25administration, or

(b) enabling those persons to secure that those amounts are so applied.

(3) The modified condition may require the person on whom it is imposed to
apply amounts paid to it as result of this section in making good any shortfall
in the property available for meeting the expenses of the postal administration.

(4) 30For the purposes of this section “price control provision” means—

(a) provision as to the tariffs that are to be used as mentioned in section
36(4) (designated USP condition: tariffs), or

(b) provision as to prices that may be charged for the giving of access
under an access condition (within the meaning of Part 3).

(5) 35For the purposes of this section—

(a) there is a shortfall in the property available for meeting the costs of a
postal administration if the property available (apart from this section)
for meeting relevant debts is insufficient for meeting them, and

(b) amounts are applied in making good that shortfall if they are paid in or
40towards discharging so much of a relevant debt as cannot be met out of
the property otherwise available for meeting relevant debts.

(6) In this section “relevant debt”, in relation to a case in which a company is or has
been subject to a postal administration order, means an obligation—

(a) to make payments in respect of the expenses or remuneration of any
45person as the postal administrator of the company,

(b) to make a payment in discharge of a debt or other liability of the
company arising out of a contract entered into at a time when the order
was in force by the person who at that time was the postal
administrator of the company,

(c) 5to repay the whole or a part of a grant made to the company under
section 79,

(d) to repay a loan made to the company under section 79 or to pay interest
on such a loan,

(e) to make a payment under section 80(5), or

(f) 10to make a payment under section 81(5).

Supplementary provisions

84 Modification of Part 4 under Enterprise Act 2002

The power to modify or apply enactments conferred on the Secretary of State
by—

(a) 15sections 248 and 277 of the Enterprise Act 2002 (amendments
consequential on that Act), and

(b) section 254 of that Act (power to apply insolvency law to foreign
companies),

includes power to make such consequential modifications of this Part as the
20Secretary of State considers appropriate in connection with any other provision
made under any of those sections.

85 Interpretation of Part 4

(1) In this Part—

• “the 1986 Act” means the Insolvency Act 1986,

• 25“business”, “member”, “property” and “security” have the same meaning
  as in the 1986 Act,

• “company” means—

  (a)

  a company registered under the Companies Act 2006, or

  (b)

  an unregistered company,

• 30“the court”, in relation to a company, means the court having jurisdiction
  to wind up the company,

• “foreign company” means a company incorporated outside the United
  Kingdom,

• “objective of the postal administration” is to be read in accordance with
  35section 69,

• “postal administration order” has the meaning given by section 68(1),

• “postal administration rules” means rules made under section 411 of the
  1986 Act as a result of section 73 above,

• “postal administrator” has the meaning given by section 68(2) and is to be
  40read in accordance with subsection (3) below,

• “Scottish firm” means a firm constituted under the law of Scotland,

• “UK affairs, business and property”, in relation to a company, means—

  (a)

  its affairs and business so far as carried on in the United
  Kingdom, and

  (b)

  45its property in the United Kingdom, and

Postal Services BillPage 55

• “unregistered company” means a company that is not registered under
  the Companies Act 2006.

(2) Any expression which is used in this Part and in Part 3 has the same meaning
in this Part as in that Part.

(3) 5In this Part references to the postal administrator of a company—

(a) include a person appointed under paragraph 91 or 103 of Schedule B1
to the 1986 Act, as applied by Part 1 of Schedule 10 to this Act, to be the
postal administrator of the company, and

(b) if two or more persons are appointed as the postal administrator of the
10company, are to be read in accordance with the provision made under
section 72(5).

(4) References in this Part to a person qualified to act as an insolvency practitioner
in relation to a company are to be read in accordance with Part 13 of the 1986
Act, but as if references in that Part to a company included a company
15registered under the Companies Act 2006 in Northern Ireland.

(5) For the purposes of this Part an application made to the court is outstanding if
it—

(a) has not yet been granted or dismissed, and

(b) has not been withdrawn.

(6) 20An application is not to be taken as having been dismissed if an appeal against
the dismissal of the application, or a subsequent appeal, is pending.

(7) An appeal is to be treated as pending for this purpose if—

(a) an appeal has been brought and has not been determined or
withdrawn,

(b) 25an application for permission to appeal has been made but has not been
determined or withdrawn, or

(c) no appeal has been brought and the period for bringing one is still
running.

(8) References in this Part to Schedule B1 to the 1986 Act, or to a provision of that
30Schedule (except the references in subsection (2) above), are to that Schedule or
that provision without the modifications made by Part 1 of Schedule 10 to this
Act.

86 Partnerships

(1) The Lord Chancellor may, by order made with the concurrence of the Secretary
35of State and the Lord Chief Justice, apply (with or without modifications) any
provision of this Part in relation to partnerships.

(2) An order under subsection (1) is subject to negative resolution procedure.

(3) Subsection (1) does not apply in relation to Scottish firms.

(4) The Lord Chief Justice may nominate a judicial office holder (as defined in
40section 109(4) of the Constitutional Reform Act 2005) to exercise the function of
the Lord Chief Justice under subsection (1).

(5) The Secretary of State may by order apply (with or without modifications) any
provision of this Part in relation to Scottish firms.

(6) An order under subsection (5) is subject to negative resolution procedure.

87 Northern Ireland

(1) This section makes provision about the application of this Part to Northern
Ireland.

(2) Any reference to any provision of the 1986 Act is to have effect as a reference
5to the corresponding provision of the Insolvency (Northern Ireland) Order
1989.

(3) Section 85(4) is to have effect as if the reference to Northern Ireland were to
England and Wales or Scotland.

(4) Section 86 is to have effect as if—

(a) 10in subsection (1)—

(i) the reference to the Secretary of State were to the Department of
Enterprise, Trade and Investment, and

(ii) the reference to the Lord Chief Justice were to the Lord Chief
Justice of Northern Ireland, and

(b) 15for subsection (4) there were substituted—

“(4) The Lord Chief Justice of Northern Ireland may nominate—

(a) the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002, or

(b) a Lord Justice of Appeal (as defined in section 88 of that
20Act),

to exercise the function of the Lord Chief Justice of Northern
Ireland under subsection (1).”

88 Review of Part 4

(1) As soon as reasonably practicable after the end of the review period, the
25Secretary of State must—

(a) carry out a review of the provisions of this Part, and

(b) set out the conclusions of the review in a report.

(2) The report must, in particular—

(a) set out the objectives intended to be achieved by the regulatory system
30established by those provisions,

(b) assess the extent to which those objectives have been achieved, and

(c) assess whether those objectives remain appropriate and, if so, the
extent to which they could be achieved with a system that imposed less
regulation.

(3) 35The review period is the period of 5 years beginning with the day on which the
provisions of this Part come generally into force.

(4) The Secretary of State must lay the report before Parliament.

Part 5 General

89 Orders and regulations made by Ministers of Crown

(1) This section applies to orders and regulations under this Act made by the
5Secretary of State, the Treasury or the Lord Chancellor.

(2) Any order or regulations may—

(a) contain incidental, supplementary, consequential, transitional,
transitory or saving provision, and

(b) make different provision for different cases or circumstances or for
10different areas.

(3) Any order or regulations are to be made by statutory instrument.

(4) Where any order or regulations are subject to “affirmative resolution
procedure” the order or regulations may not be made unless a draft of the
statutory instrument containing the order or regulations has been laid before,
15and approved by a resolution of, each House of Parliament.

(5) Where any order is subject to “approval after being made”, the order—

(a) must be laid before Parliament after being made, and

(b) ceases to have effect at the end of the period of 28 days beginning with
the day on which it was made unless, during that period, it is approved
20by a resolution of each House of Parliament.

(6) In reckoning the period of 28 days no account is to be taken of any time—

(a) during which Parliament is dissolved or adjourned, or

(b) during which both Houses are adjourned for more than 4 days.

(7) The order ceasing to have effect does not affect—

(a) 25anything previously done under it, or

(b) the making of a new order.

(8) Where any order or regulations are subject to “negative resolution procedure”
the statutory instrument containing the order or regulations is subject to
annulment in pursuance of a resolution of either House of Parliament.

(9) 30Any provision that may be made by any order or regulations subject to
negative resolution procedure may be included in an order or regulations
subject to affirmative resolution procedure (in which case negative resolution
procedure does not apply to the order or regulations).

90 Minor definitions

35In this Act—

• “enactment” includes—

  (a)

  an enactment contained in subordinate legislation within the
  meaning of the Interpretation Act 1978,

  (b)

  an enactment contained in, or in an instrument made under, an
  40Act of the Scottish Parliament,

  (c)

  an enactment contained in, or in an instrument made under,
  Northern Ireland legislation, and

  Postal Services BillPage 58

  (d)

  an enactment contained in, or in an instrument made under, a
  Measure or Act of the National Assembly for Wales, and

  “OFCOM” means the Office of Communications.

91 Minor and consequential amendments

(1) 5Schedule 12 contains minor and consequential amendments (including
repeals).

(2) In that Schedule—

• Part 1 makes provision in relation to the Postal Services Act 2000,

• Part 2 makes provision in relation to the Communications Act 2003, and

• 10Part 3 makes provision in relation to other enactments.

(3) The Secretary of State or the Treasury may by order make such other provision
amending, repealing, revoking or otherwise modifying any enactment as they
consider necessary or expedient in consequence of any provision made by this
Act.

(4) 15An order under subsection (3) is subject to negative resolution procedure.

92 Financial provisions

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown or the Postal
Services Commission by virtue of this Act, and

(b) 20any increase attributable to this Act in the sums payable under any
other Act out of money so provided.

93 Short title, commencement and extent

(1) This Act may be cited as the Postal Services Act 2011.

(2) The following provisions of this Act come into force on the day on which this
25Act is passed—

(a) section 43 and Schedule 4 (recovery of administrative charges incurred
by OFCOM),

(b) section 66 and Schedule 9 (transitional provisions for Part 3) and the
provisions mentioned in that Schedule (to the extent provided),

(c) 30sections 89 and 90,

(d) section 91(3) and (4),

(e) section 92,

(f) this section, and

(g) any other provisions of this Act so far as necessary for the purposes of
35any of the provisions mentioned above.

(3) The remaining provisions of this Act come into force on such day as the
Secretary of State may by order appoint (and different days may be appointed
for different purposes).

(4) The Secretary of State may by order make such transitional provision and
40savings as the Secretary of State considers necessary or expedient in connection
with the commencement of any provision made by this Act.

(5) Any amendment or repeal made by this Act has the same extent as the
enactment to which it relates.

(6) Subject to that, this Act extends to England and Wales, Scotland and Northern
Ireland.