Postal Services Bill [HL]

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Postal Services Bill [HL]

Postal Services Bill [HL]
Part 3 — Regulation of postal services
30

General provisions
50
Imposition, modification or revocation of regulatory conditions
Schedule 6 contains general provision about the imposition of regulatory
conditions and their modification or revocation.
51
Appeals against price control decisions
5
(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
the 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.
10
(3)
OFCOM must refer any appeal made in accordance with this section (and with
rules made under section 52) 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
decision.
15
(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 Commission considers that the circumstances of the case are
exceptional, the period of 6 months beginning with that day.
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Where 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)
On determining the appeal, the Commission must either—
(a)
dismiss the appeal, or
25
(b)
allow the appeal and make its own decision on the subject matter of the
appeal.
(7)
An appeal may be allowed only if the Commission considers that OFCOM
made a material error.
(8)
The Commission may investigate any matter or do any other thing for the
30
purpose of making a decision under subsection (6)(b).
(9)
OFCOM must give effect to any decision of the Commission under subsection
(6)(b) as soon as is reasonably practicable after it is made.
(10)
In this section “price control decision” means—
(a)
a decision of OFCOM as to the tariffs that are to be used as mentioned
35
in section 35(3) (designated USP condition: tariffs), or
(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.

Postal Services Bill [HL]
Part 3 — Regulation of postal services
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52
Appeals under section 51: supplementary
(1)
The Commission may make rules about the making, conduct and disposal of
appeals under section 51.
(2)
The rules may, in particular, impose time limits or other restrictions on—
(a)
the taking of evidence at an oral hearing, or
5
(b)
the making of representations or observations at an oral hearing.
(3)
The rules may make different provision for different cases.
(4)
The 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.
10
(5)
Before making the rules, the Commission must consult such persons as it
considers appropriate.
(6)
The Secretary of State may by order—
(a)
apply any of sections 109 to 117 of the Enterprise Act 2002 (c. 40)
(investigation powers of the Commission), with or without
15
modifications, in relation to appeals made under section 51, and
(b)
make provision for and in connection with the extension of the period
within which appeals must be determined in cases where requirements
imposed under section 109 of that Act (as applied) have not been
complied with.
20
(7)
An order under subsection (6) is subject to negative resolution procedure.
53
Enforcement 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.
25
54
Information
(1)
Schedule 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—
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(a)
Part 1 makes provision authorising OFCOM to require information to
be 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 (c. 26) (disclosure of
35
information) prevents the Postal Services Commission from disclosing
information to OFCOM for the purposes of OFCOM’s functions in relation to
postal services.
55
General restriction on disclosure of information
(1)
Information that—
40
(a)
is obtained by virtue of this Part, and

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Part 3 — Regulation of postal services
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(b)
relates 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
5
carrying on the business;
(b)
for the purpose of facilitating the carrying out—
(i)
by OFCOM of any of their functions,
(ii)
by the Secretary of State, the Treasury or the Competition
Commission of their functions under this Act, or
10
(iii)
by a prescribed person or body of functions under a prescribed
enactment;
(c)
in connection with the investigation of any criminal offence or for the
purposes of any criminal proceedings;
(d)
for the purposes of any civil proceedings brought by virtue of this Part
15
or any prescribed enactment;
(e)
in pursuance of a Community obligation; or
(f)
in any other prescribed circumstances or for any other prescribed
purpose.
(3)
In subsection (2) “prescribed” means prescribed by order of the Secretary of
20
State.

Any such order is subject to affirmative resolution procedure.
(4)
This section does not apply—
(a)
to information that has been made available to the public by being
disclosed in circumstances in which, or for a purpose for which,
25
disclosure is not precluded by this section; or
(b)
to information that by virtue of—
(i)
section 393(8) of the Communications Act 2003 (c. 21)
(information obtained by OFCOM in exercise of competition
functions), or
30
(ii)
section 29(3) of the Consumers, Estate Agents and Redress Act
2007 (c. 17) (information obtained by the National Consumer
Council),

is subject to the disclosure regime in Part 9 of the Enterprise Act 2002
(c. 40).
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(5)
It is an offence for a person to disclose information in contravention of this
section.
(6)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum;
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(b)
on conviction on indictment, to a fine or imprisonment for a term not
exceeding two years or both.

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Part 3 — Regulation of postal services
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Supplementary and consequential provisions
56
Duties in relation to social and environmental matters
(1)
The Secretary of State may from time to time give guidance about the making
by OFCOM, in the carrying out of their functions in relation to postal services,
of a contribution towards the attainment of any social or environmental
5
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)
Before giving any such guidance, the Secretary of State must consult—
(a)
OFCOM,
10
(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
before Parliament.
(5)
Guidance may not be given under subsection (1) until after the end of the
15
period of 40 days beginning with the day on which the draft is laid before
Parliament.
(6)
In calculating that period, no account is to be taken of any time during which—
(a)
Parliament is dissolved or prorogued, or
(b)
both Houses of Parliament are adjourned for more than four days.
20
(7)
If, before the end of that period, either House of Parliament resolves that the
guidance should not be given, the Secretary of State must not give it.
(8)
The Secretary of State must publish any guidance given under subsection (1) in
such way as the Secretary of State considers appropriate.
57
Orders, schemes and regulations made by OFCOM
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Section 403 of the Communications Act 2003 (c. 21) (regulations and orders
made by OFCOM) applies to any power of OFCOM under this Part to make an
order, a scheme or regulations.
58
Abolition of Postal Services Commission etc
(1)
The Postal Services Commission is abolished.
30
(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.
(3)
The following provisions apply in relation to a transfer scheme made by virtue
of subsection (2).
35
(4)
The Transfer of Undertakings (Protection of Employment) Regulations 2006
(S.I. 2006/246) apply to a transfer, by virtue of a transfer scheme, of rights and
liabilities under a contract of employment (whether or not the transfer would
otherwise be a relevant transfer for the purposes of those regulations).

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(5)
Where an employee of the Postal Services Commission becomes an employee
of OFCOM by virtue of a transfer scheme—
(a)
a period of employment with that Commission is to be treated as a
period of employment with OFCOM, and
(b)
the transfer to OFCOM is not to be treated as a break in service.
5
(6)
The transfer of functions, assets or liabilities from the Postal Services
Commission to OFCOM under or by virtue of this Act is not to be treated as a
merger for accounting purposes.
59
Interpretation of Part 3
(1)
In this Part—
10
“access condition” means a USP access condition or a general access
condition;
“access point” has the meaning given by section 31(4);
“consumer protection condition” has the meaning given by section 48;
“contravention” has the meaning given by subsection (3)(a) below;
15
“designated USP condition” has the meaning given by section 35;
“essential condition” has the meaning given by section 46;
“general access condition” has the meaning given by section 47;
“general universal service condition” has the meaning given by section 40;
“letter” means any communication in written form on any kind of
20
physical medium to be conveyed to the person or address indicated on
the item itself or on its wrapping (excluding any book, catalogue,
newspaper or periodical) and includes a postal packet containing any
such communication;
“OFCOM” means the Office of Communications;
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“postal operator” has the meaning given by section 29;
“postal packet” has the meaning given by section 29;
“postal services” has the meaning given by section 29;
“regulatory condition” has the meaning given by section 30;
“the universal postal service order” has the meaning given by section 32;
30
“universal service obligations”, in relation to the designated universal
service provider, has the meaning given by section 42(1);
“the universal service provider” means the postal operator for the time
being designated under section 34;
“user”, in relation to a postal service, includes—
35
(a)
addressees, and
(b)
potential users;
“USP access condition” has the meaning given by section 37;
“USP accounting condition” has the meaning given by section 38.
(2)
In this Part—
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(a)
references to the provision of a universal postal service are to be read in
accordance with section 32,
(b)
references to the provision of a service within the scope of the universal
postal service are to be read in accordance with section 39.
(3)
For the purposes of this Part—
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Part 4 — General
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(a)
“contravention” includes a failure to comply (and related expressions
are to be read accordingly),
(b)
where there is a contravention of an obligation that requires a person to
do anything within a particular period or before a particular time, the
contravention is to be taken to continue after the end of that period, or
5
after that time, until that thing is done,
(c)
references to remedying the consequences of a contravention include
paying an amount to a person—
(i)
by way of compensation for loss or damage suffered by the
person, or
10
(ii)
in respect of annoyance, inconvenience or anxiety to which the
person has been put, and
(d)
in determining whether a contravention is a repeated contravention for
any purposes, a notification of a contravention under any provision is
to be ignored if it has been withdrawn before the imposition of a
15
penalty in respect of the matters notified.
(4)
Any power under this Part to provide for the manner in which anything is to
be done includes power to provide for the form in which it is to be done.
(5)
Any reference in this Part to OFCOM’s functions under an enactment includes
their power to do anything which appears to them to be incidental or
20
conducive to the carrying out of their functions under that enactment.
60
Transitional provisions for Part 3
Schedule 9 makes transitional provision in connection with the coming into
force of this Part and provides for OFCOM to carry out certain functions before
the provisions of this Part come into force generally.
25
Part 4
General
61
Orders and regulations made by the Secretary of State or the Treasury
(1)
This section applies to orders and regulations under this Act made by the
Secretary of State or the Treasury.
30
(2)
Any order or regulations may—
(a)
contain incidental, supplementary, consequential, transitional,
transitory or saving provision;
(b)
make different provision for different cases or circumstances.
(3)
Any order or regulations must be made by statutory instrument.
35
(4)
Where orders or regulations are subject to “affirmative resolution procedure”
the order or regulations may not be made unless a draft of the statutory
instrument containing them has been laid before Parliament and approved by
a resolution of each House of Parliament.
(5)
Where orders or regulations are subject to “negative resolution procedure” the
40
statutory instrument containing the order or regulations is subject to
annulment in pursuance of a resolution of either House of Parliament.

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(6)
Any provision that may be made by order may be made by regulations; and
any provision that may be made by regulations may be made by order.
(7)
Any provision that may be made by order or regulations subject to negative
resolution procedure may be included in an instrument subject to affirmative
resolution procedure.
5
62
Meaning of “enactment”
In this Act “enactment” includes—
(a)
an enactment contained in subordinate legislation within the meaning
of the Interpretation Act 1978 (c. 30),
(b)
an enactment contained in, or in an instrument made under, an Act of
10
the Scottish Parliament,
(c)
an enactment contained in, or in an instrument made under, Northern
Ireland legislation, and
(d)
an enactment contained in, or in an instrument made under, a Measure
or Act of the National Assembly for Wales.
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63
Minor and consequential amendments and repeals
(1)
Schedule 10 contains minor and consequential amendments and repeals.
(2)
In that Schedule—
Part 1 contains amendments of the Postal Services Act 2000 (c. 26);
Part 2 contains amendments of the Communications Act 2003 (c. 21);
20
Part 3 contains amendments of other enactments;
Part 4 contains general modifications; and
Part 5 contains further repeals.
(3)
The Secretary of State or the Treasury may by order make such other provision
amending, repealing or revoking any enactment as they consider necessary or
25
expedient in consequence of any provision made by this Act.
(4)
An order under subsection (3) is subject to negative resolution procedure.
64
Short title, commencement and extent
(1)
The short title of this Act is the Postal Services Act 2009.
(2)
The following provisions of this Act come into force on the day after this Act is
30
passed—
(a)
in Part 3 (regulation of postal services), section 60 and Schedule 9
(transitional provisions for that Part) and the provisions mentioned in
that Schedule (to the extent provided);
(b)
in this Part—
35
section 61 (orders and regulations made by the Secretary of State
or the Treasury),
section 62 (meaning of “enactment”);
section 63(3) and (4) (power to make consequential amendments
etc), and
40
this section;
(c)
any other provisions of this Act so far as necessary for the purposes of
the provisions mentioned above.