Postal Services Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Postal Services Bill

Postal Services Bill
Part 3 — Regulation of postal services
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(b)
the resolution of disputes between postal operators and users of their
services,
(c)
the provision of remedies and redress in respect of matters that form
the subject-matter of such complaints or disputes,
(d)
the information that is to be made available by postal operators to users
5
of their services about service standards and about the rights of those
users, and
(e)
anything else appearing to OFCOM to be necessary to secure effective
protection for those users.
(4)
The reference in subsection (2)(c) to qualifying consumer expenses of the
10
National Consumer Council or the Office of Fair Trading is to—
(a)
such proportion of the expenses of the National Consumer Council as
the Secretary of State considers reasonable having regard to the
functions exercisable by it in relation to users of postal services, and
(b)
such proportion of the expenses of the Office of Fair Trading incurred
15
in connection with its support of any public consumer advice scheme
as the Secretary of State considers reasonable having regard to the
functions under the scheme exercisable in relation to those users.
(5)
In imposing a consumer protection condition, OFCOM must (so far as they
consider appropriate) secure that—
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(a)
the procedures for the handling of complaints and the resolution of
disputes are easy to use, transparent and effective and otherwise
facilitate the settling of disputes fairly and promptly,
(b)
users have the right to use those procedures free of charge, and
(c)
if a postal operator contravenes a consumer protection condition, the
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operator follows such procedures as may be required by the condition.
(6)
The Secretary of State may direct OFCOM to include provision within
subsection (2)(c) in consumer protection conditions.
(7)
In this section and section 50 any reference, in relation to postal operators, to
users of their services is to users of any of the postal services provided by the
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operators.
(8)
In this section “specified” means specified in the consumer protection
condition.
50
Provision that may be made by consumer protection conditions
(1)
A consumer protection condition may require postal operators to be members
35
of an approved redress scheme.
(2)
A “redress scheme” is a scheme under which complaints about postal
operators by users of their services may be made to, and investigated and
determined by, a person who is independent of postal operators and OFCOM.
(3)
A redress scheme is “approved” if it is approved by OFCOM in accordance
40
with Schedule 5.
(4)
For the purposes of the law relating to defamation, proceedings under an
approved redress scheme are to be treated in the same way as proceedings
before a court.
(5)
A consumer protection condition may require postal operators—
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(a)
to provide information to OFCOM with respect to the levels of
compliance with the standards for the handling of complaints, and
(b)
to publish information about the number of complaints made about
them (whether under an approved redress scheme or otherwise) and
the way in which the complaints have been dealt with.
5
(6)
Requirements may be contained in the condition as to the times at which, and
the manner in which, any information is to be published as a result of
subsection (5)(b).
(7)
A consumer protection condition imposed on a universal service provider
must include a requirement within subsection (5)(b).
10
General provisions
51
Imposition, modification or revocation of regulatory conditions
Schedule 6 contains general provision about the imposition of regulatory
conditions and their modification or revocation.
52
Enforcement of regulatory requirements
15
Schedule 7 makes provision for the enforcement of regulatory requirements
imposed by OFCOM in carrying out their functions in relation to postal
services.
53
Information
(1)
Schedule 8 makes provision for requiring information to be provided to
20
OFCOM for the purpose of carrying out their functions in relation to postal
services or for related purposes.
(2)
In that Schedule—
(a)
Part 1 makes provision authorising OFCOM to require information to
be provided to them,
25
(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 (disclosure of
information) prevents the Postal Services Commission from disclosing
information to OFCOM for the purposes of OFCOM’s functions in relation to
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postal services.
54
General restriction on disclosure of information
(1)
Information that—
(a)
is obtained as a result of this Part, and
(b)
relates to the affairs of an individual or to a particular business,
35

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
carrying on the business,
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(b)
for the purpose of facilitating the carrying out by OFCOM of any of
their functions,
(c)
for the purpose of facilitating the carrying out by the Secretary of State,
the Treasury or the Competition Commission of any of their functions
under this Act,
5
(d)
for the purpose of facilitating the carrying out by a prescribed body or
other person of any functions under a prescribed enactment,
(e)
in connection with the investigation of any criminal offence or for the
purposes of any criminal proceedings,
(f)
for the purposes of any civil proceedings brought as a result of this Part
10
or any prescribed enactment,
(g)
in pursuance of an EU obligation, or
(h)
in any other prescribed circumstances or for any other prescribed
purpose.
(3)
In subsection (2) “prescribed” means prescribed by an order of the Secretary of
15
State.
(4)
An order under subsection (3) is subject to affirmative resolution procedure.
(5)
This section does not apply to information that has been made available to the
public by being disclosed in circumstances in which, or for a purpose for
which, disclosure is not precluded by this section.
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(6)
This section also does not apply to information that is subject to the disclosure
regime in Part 9 of the Enterprise Act 2002 as a result of—
(a)
section 393(8) of the Communications Act 2003 (information obtained
by OFCOM in exercise of competition functions), or
(b)
section 29(3) of the Consumers, Estate Agents and Redress Act 2007
25
(information obtained by the National Consumer Council).
(7)
A person who discloses information in contravention of this section commits
an offence.
(8)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
30
maximum, or
(b)
on conviction on indictment, to a fine or imprisonment for a term not
exceeding two years or both.
Appeals
55
Decisions by OFCOM to impose regulatory conditions, penalties etc
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(1)
For the purposes of this section a “qualifying decision” means—
(a)
a decision to impose or modify a regulatory condition,
(b)
a decision to give, modify or withdraw a direction, consent or approval
that falls within paragraph 2 of Schedule 6,
(c)
a decision to impose a penalty, or give or modify a direction, under any
40
provision of Schedule 4, 7 or 8,
(d)
a decision to give or modify a direction under 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

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(e)
a decision to give a direction under section 25(5) of the Consumers,
Estate Agents and Redress Act 2007 (enforcement of requirements to
give information to the National Consumer Council).
(2)
A person affected by a qualifying decision may appeal against it to the
Competition Appeal Tribunal (“the CAT”).
5
(3)
The means of making an appeal is by sending the CAT a notice of appeal in
accordance with rules made under section 15 of the Enterprise Act 2002.
(4)
The notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in those rules.
(5)
In determining an appeal under this section the CAT must apply the same
10
principles as would be applied by a court on an application for judicial review.
(6)
The CAT must either—
(a)
dismiss the appeal, or
(b)
quash the whole or part of the qualifying decision to which the appeal
relates.
15
(7)
If the CAT quashes the whole or part of a qualifying decision, it may refer the
matter back to the person who made the decision with a direction to reconsider
and make a new decision in accordance with its ruling.
(8)
The CAT may not direct the person who made the decision to take any action
that the person would not otherwise have the power to take in relation to the
20
decision.
(9)
Except in the case of a decision to impose a penalty, or give or modify a
direction, under Schedule 4, 7 or 8, the effect of a qualifying decision is not
suspended by the making of an appeal against the decision under this section.
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Appeals from the CAT
25
(1)
An appeal lies to the appropriate court on any point of law arising from a
decision of the CAT under section 55.
(2)
An appeal under this section may be brought by—
(a)
a party to the proceedings before the CAT, or
(b)
any other person who has a sufficient interest in the matter.
30
(3)
An appeal under this section requires the permission of the CAT or the
appropriate court.
(4)
In this section “the appropriate court” means—
(a)
in relation to England and Wales and Northern Ireland, the Court of
Appeal, and
35
(b)
in relation to Scotland, the Court of Session.
57
Price control decisions
(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.
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(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.

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(3)
OFCOM must refer any appeal made in accordance with this section (and with
rules made under section 58) 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.
5
(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 decision appealed against is not an initial price control decision
and the Commission considers that the circumstances of the case are
10
exceptional, the period of 6 months beginning with that day.

If 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—
15
(a)
dismiss the appeal,
(b)
allow the appeal and make its own decision on the subject matter of the
appeal, or
(c)
quash the whole or part of the price control decision to which the
appeal relates.
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(7)
The Commission may allow the appeal, or quash the whole or part of the price
control decision to which the appeal relates, only if it considers that OFCOM
made a material error.
(8)
If the Commission quashes the whole or part of a price control decision, it may
refer the matter back to OFCOM with a direction to reconsider and make a new
25
decision in accordance with its ruling.
(9)
The Commission may not direct OFCOM to take any action that they would
not otherwise have the power to take in relation to the decision.
(10)
OFCOM must give effect to any decision of the Commission under subsection
(6)(b) as soon as is reasonably practicable after it is made.
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(11)
The Commission may investigate any matter or do any other thing for the
purpose of making a decision under subsection (6)(b) or (c).
(12)
Any decision made by the Commission under subsection (6) other than one
relating to an initial price control decision is a qualifying decision for the
purposes of section 55.
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(13)
In this section—
a “price control decision” means—
(a)
a decision of OFCOM as to the tariffs that are to be used as
mentioned in section 35(4) (designated USP condition: tariffs),
or
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(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, and
an “initial price control decision” means—
(a)
the first decision of OFCOM within paragraph (a) of the
45
definition of “price control decision”, or

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(b)
the first decision of OFCOM within paragraph (b) of that
definition.
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Section 57: supplementary
(1)
The Commission may make rules about the making, conduct and disposal of
appeals under section 57.
5
(2)
The rules may, in particular, impose time limits or other restrictions on—
(a)
the taking of evidence at an oral hearing, or
(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
10
appropriate for the purpose of bringing them to the attention of those likely to
be affected by them.
(5)
Before making the rules, the Commission must consult such persons as it
considers appropriate.
(6)
The Secretary of State may by order—
15
(a)
apply any of sections 109 to 117 of the Enterprise Act 2002
(investigation powers of the Commission), with or without
modifications, in relation to appeals made under section 57, and
(b)
make provision for and in connection with the extension of the period
within which appeals must be determined in cases where requirements
20
imposed under section 109 of that Act (as applied) have not been
complied with.
(7)
An order under subsection (6) is subject to negative resolution procedure.
Supplementary and consequential provisions
59
Duties in relation to social and environmental matters
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(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
policies set out or referred to in the guidance.
(2)
OFCOM must, when carrying out their functions in relation to postal services,
30
have regard to any guidance given under subsection (1).
(3)
Before giving any such guidance, the Secretary of State must consult—
(a)
OFCOM,
(b)
the National Consumer Council, and
(c)
such other persons as the Secretary of State considers appropriate.
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(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
period of 40 days beginning with the day on which the draft is laid before
Parliament.
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(6)
In calculating that 40 day 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.
(7)
If, before the end of that 40 day period, either House of Parliament resolves that
5
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.
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UK postage stamps bearing image of Her Majesty
(1)
The Secretary of State may give a direction to a universal service provider in
10
relation to United Kingdom postage stamps bearing the image of Her Majesty
that the provider proposes to issue.
(2)
A direction under this section must include provision for the stamps not to be
issued without the approval of Her Majesty.
(3)
The provision that may be contained in a direction under this section
15
includes—
(a)
provision in relation to the design or subject-matter of the stamps
(including the frequency of designs in any period specified in the
direction), and
(b)
provision conferring functions on persons (or a committee of persons).
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(4)
A direction under this section must be in writing.
(5)
A direction may be varied or revoked by a further direction.
(6)
A person to whom a direction has been given has a duty to comply with it.
(7)
That duty is enforceable in civil proceedings by the Secretary of State—
(a)
for an injunction,
25
(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.
61
Orders, schemes and regulations made by OFCOM
Section 403 of the Communications Act 2003 (regulations and orders made by
30
OFCOM) applies to any power of OFCOM under this Part to make an order, a
scheme or regulations.
62
Abolition of Postal Services Commission etc
(1)
The Postal Services Commission is abolished.
(2)
In section 30 of, and Schedule 2 to, the Communications Act 2003 (transfers of
35
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).