Postal Services Bill (HL Bill 70)

(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 the same or different failures to pay
administrative charges.

5Enforcement of directions under paragraph 7

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

(a) while the person’s entitlement to do so is suspended by a direction
under paragraph 7, or

(b) in contravention of a restriction contained in a direction under that
10paragraph.

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

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

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

(3) 15The duty of a person to comply with a condition of a direction under
paragraph 7 is to be a duty owed to every person who may be affected by a
contravention of the condition.

(4) Sub-paragraphs (5) and (6) apply where a duty is owed by virtue of sub-
paragraph (3) to a person.

(5) 20A breach of the duty that causes that person to sustain loss or damage is
actionable at the suit or instance of that person.

(6) 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) 25is done wholly or partly for achieving that result,

is actionable at the suit or instance of that person.

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

(a) all reasonable steps, and

(b) 30exercised all due diligence,

to avoid contravening the condition in question.

Section 52

SCHEDULE 5 Approval of redress schemes

Approval of redress schemes

1 (1) 35In deciding whether to approve a redress scheme, OFCOM must have
regard to—

(a) the provisions of the scheme,

(b) the manner in which the scheme will be operated (so far as that can
be judged from the facts known to OFCOM),

(c) the interests of users of postal services (including, in particular, the
number of other redress schemes which are, or are likely to be,
approved), and

(d) applicable best practice.

(2) 5“Applicable best practice” means the principles—

(a) which, in OFCOM’s opinion, constitute generally accepted
principles of best practice in relation to schemes for providing
redress to consumers, and

(b) which it is reasonable to regard as applicable to the scheme.

(3) 10OFCOM must not approve a redress scheme unless—

(a) the membership of the scheme is open to all postal operators,

(b) the independent adjudicator may require members of the scheme to
provide complainants with the minimum types of redress (whether
or not other types of redress are available), and

(c) 15OFCOM consider that the scheme makes satisfactory provision
about the matters listed in sub-paragraph (6).

(4) Sub-paragraph (3)(a) is not to be read as preventing OFCOM from
approving a redress scheme that contains provision as to the expulsion of its
members.

(5) 20The minimum types of redress are—

(a) providing an apology or explanation,

(b) paying compensation, and

(c) taking such other action in the interests of the complainant as the
independent adjudicator may specify.

(6) 25The matters are—

(a) the matters about which complaints may be made (which may
include contravention of a code of practice or other document),

(b) the independent adjudicator’s duties and powers in relation to the
investigation and determination of complaints (which may include
30power to decide not to investigate or determine a complaint),

(c) the enforcement of any requirement to provide redress imposed on
a member of the scheme,

(d) the acceptance and handling of complaints transferred from redress
schemes which have their approval withdrawn under paragraph 2,
35and

(e) the provision of information by the independent adjudicator to the
persons within sub-paragraph (7) (and, in the case of persons within
sub-paragraph (7)(e) and (f), for the purposes mentioned there).

(7) The persons are—

(a) 40OFCOM,

(b) persons carrying out functions under other redress schemes that
apply to postal operators,

(c) the National Consumer Council,

(d) the Secretary of State,

(e) 45the Office of Fair Trading, for the purposes of any public consumer
advice scheme supported by it, and

(f) persons who operate a public consumer advice scheme supported by
the Office of Fair Trading, for the purposes of that scheme.

(8) In this paragraph “the independent adjudicator” means the person
mentioned in section 52(2) who investigates and determines the complaints.

Approval of redress schemes: supplementary

2 (1) An application for approval of a redress scheme must be made in such
5manner, and be accompanied by such information, as OFCOM may
determine.

(2) The person who administers an approved redress scheme must notify
OFCOM of any change to the scheme.

(3) That notification must be given before the end of the period of 14 days
10beginning with the day on which the change is made.

(4) OFCOM may withdraw their approval of a redress scheme, and may do so
generally or in relation to complaints of a description specified by OFCOM.

(5) OFCOM may, in particular, specify complaints by reference to the date on
which they were made.

15Procedure for refusing or withdrawing approval

3 (1) Before refusing or withdrawing their approval of a redress scheme, OFCOM
must give the person who administers the scheme (“the scheme
administrator”) a notice—

(a) stating that they propose to refuse or withdraw approval,

(b) 20giving the reasons for the proposed refusal or withdrawal, and

(c) specifying a period within which representations about the
proposed refusal or withdrawal may be made.

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

(3) 25OFCOM must give notice (a “decision notice”) to the scheme administrator
of—

(a) OFCOM’s decision on a proposal to refuse or withdraw approval,
and

(b) the reasons for their decision.

(4) 30If the decision is to withdraw approval, OFCOM must also give notice of
their decision and the reasons for it to the Secretary of State.

(5) The scheme administrator must give a copy of a decision notice to each
member of the scheme.

(6) If OFCOM decide to withdraw approval, the withdrawal has effect in
35accordance with, and from the date specified in, the decision notice.

Section 53

SCHEDULE 6 Imposition, modification or revocation of regulatory conditions

General test for imposing or modifying regulatory conditions

1 OFCOM may impose or modify a regulatory condition only if satisfied that
5the condition or modification—

(a) is objectively justifiable,

(b) does not discriminate unduly against particular persons or a
particular description of persons,

(c) is proportionate to what it is intended to achieve, and

(d) 10is transparent in relation to what it is intended to achieve.

Provision which may be contained in regulatory conditions

2 (1) The power of OFCOM to impose a regulatory condition includes each of the
following powers.

Directions

15The power to impose a requirement to comply with directions given by
OFCOM, or by another person specified in the condition, with respect to the
matters to which the condition relates.

Consents, approvals and recommendations

The power to impose an obligation with respect to those matters framed by
20reference to, or conditional on, the consent, approval or recommendation of
OFCOM or of another person specified in the condition.

Discretion

The power to confer a discretion exercisable by OFCOM or by another
person specified in, or determined in accordance with, the condition.

25Different provision for different cases

The power to impose different conditions for different cases (including
different conditions in relation to different parts of the United Kingdom).

Revocation and modification

(2) The directions that are authorised as a result of this paragraph do not
30include directions withdrawing, suspending or restricting a person’s
entitlement to provide (in whole or in part) postal services.

Procedure for imposing, modifying or revoking conditions

3 (1) The way in which a regulatory condition is to be imposed or modified is by
the publication of a notification setting out the condition or modification.

(2) 35The way in which a regulatory condition is to be revoked is by the
publication of a notification stating that the condition is revoked.

(3) Before imposing, modifying or revoking a regulatory condition, OFCOM
must publish a notification—

(a) stating that they are proposing to impose, modify or revoke the
condition specified in the notification,

(b) 5setting out the effect of the condition, modification or revocation,

(c) giving their reasons for making the proposal, and

(d) specifying the period within which representations may be made to
OFCOM about their proposal.

(4) The specified period must be at least one month beginning with the day after
10the day the notification is published.

(5) OFCOM may give effect, with or without modifications, to a proposal with
respect to which they have published a notification only if they—

(a) have considered every representation about the proposal that is
made to them within the specified period, and

(b) 15have had regard to every international obligation of the United
Kingdom (if any) which has been notified to them for the purposes
of this paragraph by the Secretary of State.

(6) The publication of a notification under this paragraph must be in such
manner as appears to OFCOM to be appropriate for bringing its contents—

(a) 20in the case of a designated USP condition, a USP access condition or
a USP accounting condition, to the attention of the persons who, in
OFCOM’s opinion, are likely to be affected by its contents, and

(b) in any other case, to the attention of such persons as OFCOM
consider appropriate.

(7) 25The requirements of this paragraph apply even if OFCOM is under a duty
under any other provision of Part 3 of this Act to impose or modify a
condition.

Directions and approvals for purposes of conditions

4 (1) This paragraph applies if—

(a) 30a regulatory condition has effect by reference to directions,
approvals or consents given by a person (whether OFCOM or
another), and

(b) the person proposes to give a direction, approval or consent affecting
the operation of the condition or to modify or withdraw a direction,
35approval or consent so as to affect its operation.

(2) A person may give, modify or withdraw the direction, approval or consent
only if satisfied that to do so—

(a) is objectively justifiable,

(b) does not discriminate unduly against particular persons or a
40particular description of persons,

(c) is proportionate to what it is intended to achieve, and

(d) is transparent in relation to what it is intended to achieve.

(3) Before the direction, approval or consent is given, modified or withdrawn, a
notification must be published—

(a) 45stating that there is a proposal to give, modify or withdraw it,

(b) identifying the person whose proposal it is,

(c) setting out the direction, approval or consent to which the proposal
relates,

(d) setting out the effect of the direction, approval or consent or of its
proposed modification or withdrawal,

(e) 5giving reasons for the making of the proposal, and

(f) specifying the period within which representations may be made
about the proposal to the person whose proposal it is.

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

(5) 10But if the person giving the notification is satisfied that there are exceptional
circumstances justifying a shorter period, the period for making
representations may be whatever shorter period that person considers
reasonable in the circumstances.

(6) If—

(a) 15a person other than OFCOM proposes to give, modify or withdraw
a direction, approval or consent, and

(b) the condition for the purposes of which it has (or will have) effect
provides for notifications of proposals for the purposes of the
condition to be given by that person,

20the obligation of publishing the notification of that proposal for the purposes
of this paragraph falls on that person.

(7) Otherwise, the obligation of publishing a notification for the purposes of this
paragraph falls on OFCOM.

(8) The person who is authorised to give the direction, approval or consent may
25give effect, with or without modifications, to a proposal with respect to
which a notification has been given only if the person—

(a) has considered every representation about the proposal that is made
to the person within the period specified in the notification, and

(b) has had regard to every international obligation of the United
30Kingdom (if any) which has been notified to OFCOM for the
purposes of this paragraph by the Secretary of State.

(9) The publication of a notification under this paragraph must be in such
manner as appears to the person publishing it to be appropriate for bringing
its contents to the attention of such persons as that person considers
35appropriate.

Delivery of copies of notifications etc.

5 (1) The relevant person must send to the Secretary of State—

(a) a copy of every notification published under paragraph 3 or 4,

(b) a copy of every direction, approval or consent given for the purpose
40of giving effect to a proposal required to be published under
paragraph 4, and

(c) a copy of every instrument modifying or withdrawing a direction,
approval or consent for the purpose of giving effect to a proposal
required to be published under that paragraph.

(2) 45The relevant person must send to the European Commission—

(a) a copy of every notification published under paragraph 3(1) with
respect to a designated USP condition or a general universal service
condition,

(b) a copy of every direction, approval or consent given for the purposes
5of a designated USP condition or a general universal service
condition, and

(c) a copy of every instrument modifying or withdrawing such a
direction, approval or consent.

(3) In this paragraph “the relevant person”, in relation to a notification,
10direction, approval or consent—

(a) except in a case falling within paragraph (b), means the person by
whom it is published or by whom it has been or is to be given,
modified or withdrawn, and

(b) in the case of a direction, approval or consent given, modified or
15withdrawn by a person other than OFCOM for the purpose of giving
effect to a proposal published by OFCOM under paragraph 4, means
OFCOM.

Section 54

SCHEDULE 7 Enforcement of regulatory requirements

20Introduction

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

(2) “Regulatory requirement” means—

(a) 25a regulatory condition, or

(b) a direction under—

(i) 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

(ii) 30section 25(5) of the Consumers, Estate Agents and Redress
Act 2007 (enforcement of requirements to give information to
the National Consumer Council).

(3) The reference to the enforcement of a regulatory condition includes the
enforcement of an access condition containing provision as a result of
35paragraph 6 of Schedule 3 against the person (B) who has made the
arrangements with a postal operator mentioned in that paragraph.

Notification of contravention of regulatory requirements

2 (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
40contravening, or has contravened, a regulatory requirement.

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

(a) 5to make representations about the notified determination,

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

(c) to remedy the consequences of notified contraventions.

(4) The specified period must be at least one month beginning with the day after
10the day the notification is given unless—

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

(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, or

(c) 15OFCOM specify a shorter period under paragraph 8(3) (power to
deal with urgent cases).

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

(a) a previous notification has been given in respect of the same
20contravention or in respect of another contravention of the same
regulatory requirement, and

(b) the subsequent notification is given no more than 12 months after the
day on which OFCOM determine for the purposes of paragraph 5(2)
or 6(2) that the contravention to which the previous notification
25related did occur.

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

3 (1) A notification under paragraph 2—

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

(b) if it is given in respect of a continuing contravention, may be given
30in respect of any period during which the contravention has
continued.

(2) If a notification under paragraph 2 has been given to a person in respect of a
contravention of a regulatory requirement, OFCOM may give a further
notification in respect of the same contravention of that requirement only
35if—

(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
earlier notification relates, or

(c) 40the earlier notification has been withdrawn without a penalty having
been imposed in respect of the notified contravention.

4 OFCOM may not give a notification under paragraph 2 in relation to a
contravention if—

(a) they decide that a more appropriate way of proceeding in relation to
45the contravention would be under the Competition Act 1998, and

(b) they publish a statement to that effect in such manner as they
consider appropriate for bringing their decision to the attention of
the persons who, in their opinion, are likely to be affected by it.

Enforcement notification for contravention of regulatory requirements

5 (1) This paragraph applies if—

(a) a person has been given a notification under paragraph 2,

(b) OFCOM have allowed the person an opportunity of making
5representations about the matters notified, and

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

(2) OFCOM may give the person an enforcement notification if they are
satisfied that the person—

(a) has, in one or more of the respects notified, been in contravention of
10a requirement specified in the notification under paragraph 2, and

(b) has not, during the period allowed under that paragraph, taken all
such steps as they consider appropriate—

(i) for complying with that requirement, and

(ii) for remedying the consequences of the notified contravention
15of that requirement.

(3) An enforcement notification is a notification which imposes one or both of
the following requirements on the person—

(a) a requirement to take such steps for complying with the notified
regulatory requirement as may be specified in the notification,

(b) 20a requirement to take such steps for remedying the consequences of
the notified contravention as may be so specified.

(4) A decision of OFCOM to give an enforcement notification to a person—

(a) must be notified by them to that person, together with their reasons
for the decision, no later than one week after the day on which it is
25taken, and

(b) must fix a reasonable period for the taking of the steps required by
the notification.

(5) A person to whom an enforcement notification has been given has a duty to
comply with it.

(6) 30That duty is enforceable in civil proceedings by OFCOM—

(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.

35Penalties for contravention of regulatory requirements

6 (1) This paragraph applies (in addition to paragraph 5) if—

(a) a person has been given a notification under paragraph 2,

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

(c) 40the period allowed for the making of the representations has ended.

(2) OFCOM may impose a penalty on a person if the person has, in one or more
of the respects notified, been in contravention of a requirement specified in
the notification under paragraph 2.

(3) If a notification under paragraph 2 relates to more than one contravention, a
45separate penalty may be imposed in respect of each contravention.

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

(5) OFCOM may also impose a penalty on a person if the person is
5contravening, or has contravened, a requirement of an enforcement
notification given under paragraph 5.

(6) 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) 10in that notification, fix a reasonable period after it is given as the
period within which the penalty is to be paid.

(7) A penalty imposed under this paragraph—