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]
Schedule 5 — Approval of redress schemes
58

(d)
the acceptance and handling of complaints transferred from redress
schemes which have their approval withdrawn under paragraph 2,
and
(e)
the provision of information by the independent adjudicator to the
persons within sub-paragraph (7) (and, in the case of persons within
5
sub-paragraph (7)(e) and (f), for the purposes mentioned there).
      (7)
The persons are—
(a)
OFCOM,
(b)
persons carrying out functions under other redress schemes that
apply to postal operators,
10
(c)
the National Consumer Council,
(d)
the Secretary of State,
(e)
the 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
15
the Office of Fair Trading, for the purposes of that scheme.
      (8)
In this paragraph “the independent adjudicator” means the person
mentioned in section 49(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
20
manner, 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
25
beginning 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.
30
Procedure 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,
35
(b)
giving 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.
40
      (3)
OFCOM must give notice (a “decision notice”) to the scheme administrator
of—
(a)
OFCOM’s decision on a proposal to refuse or withdraw approval,
and

Postal Services Bill [HL]
Schedule 6 — Imposition, modification or revocation of regulatory conditions
59

(b)
the reasons for their decision.
      (4)
If 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.
5
      (6)
If OFCOM decide to withdraw approval, the withdrawal has effect in
accordance with, and from the date specified in, the decision notice.
Schedule 6
Section 50

Imposition, modification or revocation of regulatory conditions
General test for imposing or modifying regulatory conditions
10
1
OFCOM may impose or modify a regulatory condition only if satisfied that
the condition or modification—
(a)
is objectively justifiable,
(b)
does not discriminate unduly against particular persons or a
particular description of persons,
15
(c)
is proportionate to what it is intended to achieve, and
(d)
is 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.
20


Directions

The 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.
25


Consents, approvals and recommendations

The power to impose an obligation with respect to those matters framed by
reference to, or conditional on, the consent, approval or recommendation of
OFCOM or of another person specified in the condition.
30


Discretion

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

35

Different 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
40

The power to revoke or modify the condition.

Postal Services Bill [HL]
Schedule 6 — Imposition, modification or revocation of regulatory conditions
60

      (2)
The directions that may be authorised as a result of this paragraph do not
include 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
5
the publication of a notification setting out the condition or modification.
      (2)
The 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—
10
(a)
stating that they are proposing to impose, modify or revoke the
condition specified in the notification,
(b)
setting 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
15
OFCOM about their proposal.
      (4)
The specified period must be at least one month beginning with the day after
the 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—
20
(a)
have considered every representation about the proposal that is
made to them within the specified period, and
(b)
have 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.
25
      (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)
in 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
30
(b)
in any other case, to the attention of such persons as OFCOM
consider appropriate.
      (7)
The 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.
35
Directions and approvals for purposes of conditions
4     (1)
This paragraph applies if—
(a)
a regulatory condition has effect by reference to directions,
approvals or consents given by a person (whether OFCOM or
another), and
40
(b)
the person proposes to give a direction, approval or consent affecting
the operation of the condition or to modify or withdraw a direction,
approval 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—
45

Postal Services Bill [HL]
Schedule 6 — Imposition, modification or revocation of regulatory conditions
61

(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)
is transparent in relation to what it is intended to achieve.
5
      (3)
Before the direction, approval or consent is given, modified or withdrawn, a
notification must be published—
(a)
stating 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
10
relates,
(d)
setting out the effect of the direction, approval or consent or of its
proposed modification or withdrawal,
(e)
giving reasons for the making of the proposal, and
(f)
specifying the period within which representations may be made
15
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)
But if the person giving the notification is satisfied that there are exceptional
circumstances justifying a shorter period, the period for making
20
representations may be whatever shorter period that person considers
reasonable in the circumstances.
      (6)
If—
(a)
a person other than OFCOM proposes to give, modify or withdraw
a direction, approval or consent, and
25
(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,

the obligation of publishing the notification of that proposal for the purposes
of this paragraph falls on that person.
30
      (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
give effect, with or without modifications, to a proposal with respect to
which a notification has been given only if the person—
35
(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
Kingdom (if any) which has been notified to OFCOM for the
purposes of this paragraph by the Secretary of State.
40
      (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
appropriate.
Delivery of copies of notifications etc.
45
5     (1)
The relevant person must send to the Secretary of State—

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
62

(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
of giving effect to a proposal required to be published under
paragraph 4, and
(c)
a copy of every instrument modifying or withdrawing a direction,
5
approval or consent for the purpose of giving effect to a proposal
required to be published under that paragraph.
      (2)
The 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
10
condition,
(b)
a copy of every direction, approval or consent given for the purposes
of a designated USP condition or a general universal service
condition, and
(c)
a copy of every instrument modifying or withdrawing such a
15
direction, approval or consent.
      (3)
In this paragraph “the relevant person”, in relation to a notification,
direction, 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,
20
modified or withdrawn, and
(b)
in the case of a direction, approval or consent given, modified or
withdrawn by a person other than OFCOM for the purpose of giving
effect to a proposal published by OFCOM under paragraph 4, means
OFCOM.
25
Schedule 7
Section 53

Enforcement of regulatory requirements
Introduction
1     (1)
This Schedule makes provision for the enforcement of regulatory
requirements imposed by OFCOM in carrying out their functions in relation
30
to postal services.
      (2)
“Regulatory requirement” means—
(a)
a regulatory condition, or
(b)
a direction under—
(i)
section 89A or 116(2A) of the Postal Services Act 2000 (c. 26)
35
(schemes as to terms and conditions for provision of postal
services, and the Postcode Address File), or
(ii)
section 25(5) of the Consumers, Estate Agents and Redress
Act 2007 (c. 17) (enforcement of requirements to give
information to the National Consumer Council).
40
      (3)
The reference to the enforcement of a regulatory condition includes the
enforcement of an access condition containing provision as a result of
paragraph 6 of Schedule 3 against the person (B) who has made the
arrangements with a postal operator mentioned in that paragraph.

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Schedule 7 — Enforcement of regulatory requirements
63

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
contravening, or has contravened, a regulatory requirement.
      (2)
A notification under this paragraph must—
5
(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—
10
(a)
to 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
15
the 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
20
(c)
OFCOM 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
25
contravention 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
30
related 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
35
in 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
40
if—
(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
45
(c)
the earlier notification has been withdrawn without a penalty having
been imposed in respect of the notified contravention.

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
64

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
the contravention would be under the Competition Act 1998 (c. 41),
and
5
(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—
10
(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)
the period allowed for the making of the representations has ended.
      (2)
OFCOM may give the person an enforcement notification if they are
15
satisfied that the person—
(a)
has, in one or more of the respects notified, been in contravention of
a 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—
20
(i)
for complying with that requirement, and
(ii)
for remedying the consequences of the notified contravention
of that requirement.
      (3)
An enforcement notification is a notification which imposes one or both of
the following requirements on the person—
25
(a)
a requirement to take such steps for complying with the notified
regulatory requirement as may be specified in the notification,
(b)
a 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—
30
(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
taken, and
(b)
must fix a reasonable period for the taking of the steps required by
the notification.
35
      (5)
A person to whom an enforcement notification has been given has a duty to
comply with it.
      (6)
That 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
40
Court of Session Act 1988 (c. 36), or
(c)
for any other appropriate remedy or relief.
Penalties 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,
45