Postal Services Bill [HL]

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Postal Services Bill [HL]

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
65

(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 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
5
the notification under paragraph 2.
      (3)
If a notification under paragraph 2 relates to more than one contravention, a
separate 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
10
contravention specified in the notification.
      (5)
OFCOM may also impose a penalty on a person if the person is
contravening, 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—
15
(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)
in 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—
20
(a)
must be paid to OFCOM, and
(b)
if not paid within the period fixed by them, is to be recoverable by
them accordingly.
7     (1)
The amount of a penalty imposed under paragraph 6 on a person is to be
such amount as OFCOM determine to be—
25
(a)
appropriate, and
(b)
proportionate to the contravention in respect of which it is imposed.
      (2)
The amount must not be more than 10% of the turnover of the person’s
postal services business for the relevant period, calculated in accordance
with such rules as may be set out by order made by the Secretary of State.
30
      (3)
For the purposes of this paragraph—
“the person’s postal services business” means so much of any business
carried on by the person as consists in the provision of postal
services, and
“the relevant period” means—
35
(a)
except in a case within paragraph (b) or (c), the period of one
year ending with the 31 March next before the time when
notification of the contravention was given under paragraph
2,
(b)
in the case of a person who at that time has been carrying on
40
postal services business for under a year, the period, ending
with that time, during which the person has been carrying it
on, and
(c)
in the case of a person who at that time has ceased to carry on
postal services business, the period of one year ending with
45
the time when the person ceased to carry it on.

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
66

      (4)
In making the determination of the amount of the penalty OFCOM must
have regard to—
(a)
any representations made to them by the person,
(b)
any steps taken by the person towards complying with the
requirements contraventions of which have been notified to the
5
person under paragraph 2, and
(c)
any steps taken by the person for remedying the consequences of
those contraventions.
      (5)
An order under this paragraph is subject to affirmative resolution
procedure.
10
Power to deal with urgent cases
8     (1)
This paragraph applies if OFCOM determine—
(a)
that they are entitled to give a notification under paragraph 2 with
respect to a contravention by a person (“the contravening person”) of
a regulatory requirement,
15
(b)
that there are reasonable grounds for suspecting that the case is
urgent, and
(c)
that the urgency of the case makes it appropriate for them to act
under this paragraph.
      (2)
A case is urgent for the purposes of this paragraph if the contravention has
20
resulted in or creates an immediate risk of—
(a)
a serious threat to the safety of the public, to public health or to
national security,
(b)
serious economic or operational problems for persons providing
postal services (other than the contravening person), or
25
(c)
serious economic or operational problems for users of postal
services.
      (3)
OFCOM may, in a notification under paragraph 2 with respect to the
contravention, specify a period of less than one month for doing the things
mentioned in sub-paragraph (3) of that paragraph.
30
      (4)
OFCOM may also give to the contravening person a direction that the
entitlement of the contravening person to provide postal services—
(a)
is suspended (either generally or in relation to particular services), or
(b)
is restricted in the respects set out in the direction.
9     (1)
Unless it provides otherwise, a direction under paragraph 8 takes effect for
35
an indefinite period beginning with the time at which it is notified to the
person to whom it is given.
      (2)
A direction under paragraph 8—
(a)
in providing for the effect of a suspension or restriction to be
postponed, may provide for it to take effect only at a time
40
determined by or in accordance with the terms of the direction, and
(b)
in connection with the suspension or restriction contained in the
direction or with the postponement of its effect, may impose such
conditions on the contravening person as appear to OFCOM to be
appropriate for the purpose of protecting the users of that person’s
45
services.

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
67

      (3)
Those conditions may include a condition requiring the making of
payments—
(a)
by way of compensation for loss or damage suffered by those users
as a result of the direction, or
(b)
in respect of annoyance, inconvenience or anxiety to which those
5
users have been put in consequence of the direction.
      (4)
OFCOM may revoke a direction under this paragraph or modify its
conditions—
(a)
with effect from such time as they may direct,
(b)
subject to compliance with such requirements as they may specify,
10
and
(c)
to such extent and in relation to such services, or parts of a service, as
they may determine.
10    (1)
As soon as reasonably practicable after giving a direction under paragraph
8 to a person, OFCOM must give the person—
15
(a)
an opportunity of making representations to them about the grounds
on which it was given, and
(b)
an opportunity of proposing steps to remedy the situation.
      (2)
As soon as reasonably practicable after the period allowed by OFCOM for
making those representations has ended, OFCOM must determine—
20
(a)
whether the contravention did occur, and
(b)
whether the circumstances made it an urgent case justifying the
giving of the direction.
      (3)
If they decide that the contravention did occur and that the direction was
justified, they may confirm the direction.
25
      (4)
If not, they must revoke the direction or modify its conditions.
      (5)
As soon as reasonably practicable after determining whether to confirm the
direction, OFCOM must notify their decision to the person to whom the
direction was given.
      (6)
Conditions included in a direction as a result of paragraph 9(3) have effect
30
only if the direction is confirmed.
Suspending service provision for contravention of regulatory requirements
11    (1)
OFCOM may give a direction under this paragraph to any person who is
providing one or more postal services (“the contravening person”).
      (2)
A direction under this paragraph is a direction that the entitlement of the
35
contravening person to provide postal services—
(a)
is suspended (either generally or in relation to particular services), or
(b)
is restricted in the respects set out in the direction.
      (3)
OFCOM may give a direction under this paragraph only if they are satisfied
that conditions A to C are met.
40
      (4)
Condition A is that the contravening person is or has been in serious and
repeated contravention of regulatory requirements.

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
68

      (5)
Condition B is that an attempt, by the giving of enforcement notifications
under paragraph 5 or the imposition of penalties under paragraph 6 (or
both), to secure compliance with the contravened requirements has failed.
      (6)
Condition C is that the giving of the direction is—
(a)
appropriate, and
5
(b)
proportionate to the seriousness (when repeated as they have been)
of the contraventions.
12    (1)
Unless it provides otherwise, a direction under paragraph 11 takes effect for
an indefinite period beginning with the time at which it is notified to the
person to whom it is given.
10
      (2)
A direction under paragraph 11—
(a)
in providing for the effect of a suspension or restriction to be
postponed, may provide for it to take effect only at a time
determined by or in accordance with the terms of the direction, and
(b)
in connection with the suspension or restriction contained in the
15
direction or with the postponement of its effect, may impose such
conditions on the contravening person as appear to OFCOM to be
appropriate for the purpose of protecting the users of that person’s
services.
      (3)
Those conditions may include a condition requiring the making of
20
payments—
(a)
by way of compensation for loss or damage suffered by those users
as a result of the direction, or
(b)
in respect of annoyance, inconvenience or anxiety to which those
users have been put in consequence of the direction.
25
      (4)
OFCOM may revoke a direction under this paragraph or modify its
conditions—
(a)
with effect from such time as they may direct,
(b)
subject to compliance with such requirements as they may specify,
and
30
(c)
to such extent and in relation to such services, or parts of a service, as
they may determine.
      (5)
For the purposes of paragraph 11 there are repeated contraventions by a
person of regulatory requirements to the extent that—
(a)
in the case of a previous notification given to that person under
35
paragraph 2, OFCOM have determined for the purposes of
paragraph 5(2) or 6(2) that a contravention did occur,
(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 contraventions of a regulatory requirement,
40
and
(c)
the previous notification and the subsequent ones all relate to
contraventions of the same regulatory requirement (whether the
same contravention or different ones).
13    (1)
OFCOM are not to give a direction under paragraph 11 unless they have—
45
(a)
notified the contravening person of the proposed direction and of the
conditions (if any) which they are proposing to impose by that
direction,

Postal Services Bill [HL]
Schedule 7 — Enforcement of regulatory requirements
69

(b)
provided the contravening person with an opportunity of making
representations about the proposals and of proposing steps for
remedying the situation, and
(c)
considered every representation and proposal made to them during
the period allowed by them for the contravening person to take
5
advantage of that opportunity.
      (2)
That period must be at least one month beginning with the day after the day
the notification is given.
      (3)
This paragraph does not apply in an urgent case (as to which, see paragraph
14).
10
14    (1)
In an urgent case, OFCOM must, as soon as reasonably practicable after
giving a direction under paragraph 11, give the contravening person—
(a)
an opportunity of making representations to them about the effect of
the direction and of any of its conditions, and
(b)
an opportunity of proposing steps to remedy the situation.
15
      (2)
A case is urgent for the purposes of this paragraph if OFCOM—
(a)
consider that it would be inappropriate, because the contraventions
in question fall within sub-paragraph (3), to allow time, before giving
the direction, for the making and consideration of representations,
and
20
(b)
decide for that reason to act in accordance with this paragraph
instead of paragraph 13.
      (3)
The contraventions fall within this sub-paragraph if they have resulted in or
create an immediate risk of—
(a)
a serious threat to the safety of the public, to public health or to
25
national security,
(b)
serious economic or operational problems for persons providing
postal services (other than the contravening person), or
(c)
serious economic or operational problems for users of postal
services.
30
Enforcement of directions under paragraph 8 or 11
15    (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 8 or 11, or
(b)
in contravention of a restriction contained in a direction under either
35
of those paragraphs.
      (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;
(b)
on conviction on indictment, to a fine.
40
Civil liability for breach of regulatory requirements etc.
16    (1)
The duty of a person to comply with—
(a)
regulatory requirements,
(b)
requirements imposed by an enforcement notification under
paragraph 5, or
45

Postal Services Bill [HL]
Schedule 8 — Information provisions
Part 1 — Requirements to provide information to OFCOM
70

(c)
a condition of a direction under paragraph 8 or 11,

is a duty owed to every person who may be affected by a contravention of
the requirement or condition.
      (2)
Sub-paragraphs (3) and (4) apply where a duty is owed by virtue of sub-
paragraph (1) to a person.
5
      (3)
A breach of the duty that causes that person to sustain loss or damage is
actionable at the suit or instance of that person.
      (4)
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
10
(b)
is done wholly or partly for achieving that result,

is actionable at the suit or instance of that person.
      (5)
In proceedings brought against a person as a result of sub-paragraph (3) it is
a defence for that person to show that the person took—
(a)
all reasonable steps, and
15
(b)
exercised all due diligence,

to avoid contravening the requirement or condition in question.
      (6)
The consent of OFCOM is required for the bringing of proceedings as a
result of sub-paragraph (1)(a).
      (7)
If OFCOM give their consent subject to conditions relating to the conduct of
20
the proceedings, the proceedings are not to be carried on except in
compliance with those conditions.
Schedule 8
Section 54

Information provisions
Part 1
25
Requirements to provide information to OFCOM
Information required for purposes of OFCOM’s functions in relation to postal services
1     (1)
OFCOM may require a person falling within sub-paragraph (2) to provide
them with all such information as they consider necessary for the purpose of
carrying out any of their functions in relation to postal services.
30
      (2)
The persons within this sub-paragraph are—
(a)
a person who is, or has been, a postal operator,
(b)
a person who provides, or has provided, access points or other
facilities for use in connection with a postal service,
(c)
a person not falling within paragraph (a) or (b) who appears to
35
OFCOM to have information required by them for the purpose of
carrying out any of their functions in relation to postal services.
      (3)
The required information may, in particular, include information required
for any one or more of the following purposes—

Postal Services Bill [HL]
Schedule 8 — Information provisions
Part 1 — Requirements to provide information to OFCOM
71

(a)
ascertaining whether a contravention of a regulatory requirement
(within the meaning of Schedule 7) has occurred or is occurring,
(b)
ascertaining whether a provision of a regulatory condition which is
for the time being in force continues to be effective for the purpose
for which it was made,
5
(c)
making a designation in accordance with regulations made under
section 34,
(d)
carrying out a review under section 34 or 42,
(e)
ascertaining or verifying amounts payable by virtue of section 43,
(f)
ascertaining or verifying charges payable under Schedule 4,
10
(g)
identifying markets and carrying out market analyses or
assessments in accordance with, or for the purposes of, any
enactment relating to postal services,
(h)
statistical purposes connected with the carrying out of any of
OFCOM’s functions in relation to postal services.
15
      (4)
A demand for information under this paragraph must be proportionate to
the use to which the information is to be put in the carrying out of OFCOM’s
functions.
Restrictions on imposing requirements in case of conditions of general application
2     (1)
This paragraph limits the circumstances in which OFCOM may require the
20
provision of information under paragraph 1 for the purpose of ascertaining
whether there is, or has been, a contravention of a condition of general
application.
      (2)
OFCOM may require the provision of information for that purpose only if—
(a)
the requirement is imposed for the purpose of investigating a matter
25
about which OFCOM have received a complaint,
(b)
the requirement is imposed for the purposes of an investigation that
OFCOM have decided to carry out into whether or not the condition
in question has been complied with,
(c)
the condition in question is one which OFCOM have reason to
30
suspect is one that has been, or is being, contravened, or
(d)
the condition in question falls within section 40(1)(b).
      (3)
A “condition of general application” means a regulatory condition other
than a designated USP condition, a USP access condition or a USP
accounting condition.
35
Information required for related purposes
3     (1)
OFCOM may require—
(a)
a postal operator, or
(b)
a person who provides access points or other facilities for use in
connection with a postal service,
40

to provide OFCOM with all such information as they consider necessary to
carry out comparative overviews of the quality and prices of postal services.
      (2)
The overviews in question must be carried out—
(a)
with a view to publication, and
(b)
in the interest of users of postal services.
45