Postal Services Bill

House of Commons

Session 2010 - 11
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Postal Services Bill

Postal Services Bill
Part 3 — Regulation of postal services
38

61
Orders, schemes and regulations made by OFCOM
Section 403 of the Communications Act 2003 (regulations and orders made by
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
5
(1)
The Postal Services Commission is abolished.
(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
10
of subsection (2).
(4)
The Transfer of Undertakings (Protection of Employment) Regulations 2006
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).
15
(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.
20
(6)
The transfer of functions, property, rights 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.
63
Interpretation of Part 3 etc
(1)
In this Part—
25
“access condition” means a USP access condition or a general access
condition,
“access point” has the meaning given by section 28(5),
“consumer protection condition” has the meaning given by section 49,
“contravention” has the meaning given by subsection (4)(a),
30
“designated USP condition” has the meaning given by section 35,
“essential condition” has the meaning given by section 47,
“general access condition” has the meaning given by section 48,
“general universal service condition” has the meaning given by section 40,
“letter”—
35
(a)
means any communication in written form on any kind of
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
(b)
includes a postal packet containing any communication within
40
paragraph (a),
“postal operator” has the meaning given by section 26,
“postal packet” has the meaning given by section 26,
“postal services” has the meaning given by section 26,

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Part 3 — Regulation of postal services
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“regulatory condition” has the meaning given by section 27,
“universal postal service order” has the meaning given by section 29,
“universal service obligations” has the meaning given by section 35(8),
“universal service provider” means any postal operator for the time being
designated under section 34,
5
“user”, in relation to a postal service, includes—
(a)
addressees, and
(b)
potential users,
“USP access condition” has the meaning given by section 37, and
“USP accounting condition” has the meaning given by section 38.
10
(2)
In this Part—
(a)
references to the provision of a universal postal service are to be read in
accordance with sections 29 to 32, and
(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.
15
(3)
In the case of a universal service provider who—
(a)
provides part of a universal postal service, or
(b)
provides a universal postal service, or part of a universal postal service,
in a specified area of the United Kingdom,

references in this Part to the provision of a universal postal service are to the
20
provision of that part or to the provision of a universal postal service, or part
of a universal postal service, in that area.
(4)
For the purposes of this Part—
(a)
“contravention” includes a failure to comply (and related expressions
are to be read accordingly),
25
(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
after that time, until that thing is done,
(c)
references to remedying the consequences of a contravention include
30
paying an amount to a person—
(i)
by way of compensation for loss or damage suffered by the
person, or
(ii)
in respect of annoyance, inconvenience or anxiety to which the
person has been put, and
35
(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
penalty in respect of the matters notified.
(5)
Nothing in any provision of this Part that authorises the inclusion of any
40
particular kind of provision in any regulatory condition or direction is to be
read as restricting the generality of the provision that may be included in the
condition or direction.
(6)
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.
45
(7)
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
conducive to the carrying out of their functions under that enactment.

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Part 4 — Special administration regime
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64
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.
65
Review of Part 3
5
(1)
As soon as reasonably practicable after the end of the review period, the
Secretary of State must—
(a)
carry out a review of the provisions of this Part, and
(b)
set out the conclusions of the review in a report.
(2)
The report must, in particular—
10
(a)
set out the objectives intended to be achieved by the regulatory system
established by those provisions,
(b)
assess the extent to which those objectives have been achieved, and
(c)
assess whether those objectives remain appropriate and, if so, the
extent to which they could be achieved with a system that imposed less
15
regulation.
(3)
The review period is the period of 5 years beginning with the day on which the
provisions of this Part come generally into force.
(4)
The Secretary of State must lay the report before Parliament.
Part 4
20
Special administration regime
Postal administration orders
66
Postal administration orders
(1)
In this Part “postal administration order” means an order which—
(a)
is made by the court in relation to a company which is a universal
25
service provider, and
(b)
directs that, while the order is in force, the company’s affairs, business
and property are to be managed by a person appointed by the court.
(2)
The person appointed in relation to a company for the purposes of a postal
administration order is referred to in this Part as the postal administrator of the
30
company.
(3)
The postal administrator of a company must—
(a)
manage the company’s affairs, business and property, and
(b)
exercise and perform all the powers and duties conferred or imposed
on the postal administrator of the company,
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so as to achieve the objective set out in section 67.
(4)
In relation to a postal administration order applying to a foreign company,
references in this section to the company’s affairs, business and property are
references to its UK affairs, business and property.

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67
Objective of a postal administration
(1)
The objective of a postal administration is to secure—
(a)
that a universal postal service is provided in accordance with the
standards set out in the universal postal service order, and
(b)
that it becomes unnecessary, by one or both of the following means, for
5
the postal administration order to remain in force for that purpose.
(2)
Those means are—
(a)
the rescue as a going concern of the company subject to the order, and
(b)
relevant transfers.
(3)
A transfer is a “relevant” transfer if it is a transfer as a going concern—
10
(a)
to another company, or
(b)
as respects different parts of the undertaking of the company subject to
the order, to two or more different companies,

of so much of that undertaking as it is appropriate to transfer for the purpose
of achieving the objective of the postal administration.
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(4)
The means by which relevant transfers may be effected include, in particular—
(a)
a transfer of the undertaking of the company subject to the order, or of
a part of its undertaking, to a wholly-owned subsidiary of that
company, and
(b)
a transfer to a company of securities of a wholly-owned subsidiary to
20
which there has been a transfer within paragraph (a).

In this subsection “wholly-owned subsidiary” has the meaning given by
section 1159 of the Companies Act 2006.
(5)
The objective of a postal administration may be achieved by relevant transfers
to the extent only that—
25
(a)
the rescue as a going concern of the company is not reasonably
practicable or is not reasonably practicable without the transfers,
(b)
the rescue of the company as a going concern will not achieve the
objective of the postal administration or will not do so without the
transfers,
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(c)
the transfers would produce a result for the company’s creditors as a
whole that is better than the result that would be produced without
them, or
(d)
the transfers would, without prejudicing the interests of the company’s
creditors as a whole, produce a result for the company’s members as a
35
whole that is better than the result that would be produced without
them.
68
Applications for postal administration orders
(1)
An application for a postal administration order in relation to a company may
be made only—
40
(a)
by the Secretary of State, or
(b)
with the consent of the Secretary of State, by OFCOM.
(2)
The applicant for a postal administration order in relation to a company must
give notice of the application to—
(a)
every person who has appointed an administrative receiver of the
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company,

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(b)
every person who is or may be entitled to appoint an administrative
receiver of the company,
(c)
every person who is or may be entitled to make an appointment in
relation to the company under paragraph 14 of Schedule B1 to the 1986
Act (appointment of administrators by holders of floating charges), and
5
(d)
such other persons as may be prescribed by postal administration rules.
(3)
The notice must be given as soon as reasonably practicable after the making of
the application.
(4)
In this section “administrative receiver” means—
(a)
an administrative receiver within the meaning given by section 251 of
10
the 1986 Act for the purposes of Parts 1 to 7 of that Act, or
(b)
a person whose functions in relation to a foreign company are
equivalent to those of an administrative receiver and relate only to its
UK affairs, business and property.
69
Powers of court
15
(1)
On hearing an application for a postal administration order, the court has the
following powers—
(a)
it may make the order,
(b)
it may dismiss the application,
(c)
it may adjourn the hearing conditionally or unconditionally,
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(d)
it may make an interim order,
(e)
it may treat the application as a winding-up petition and make any
order the court could make under section 125 of the 1986 Act (power of
court on hearing winding-up petition), and
(f)
it may make any other order which it thinks appropriate.
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(2)
The court may make a postal administration order in relation to a company
only if it is satisfied—
(a)
that the company is unable, or is likely to be unable, to pay its debts, or
(b)
that, on a petition by the Secretary of State under section 124A of the
1986 Act, it would be just and equitable (disregarding the objective of
30
the postal administration) to wind up the company in the public
interest.
(3)
The court may not make a postal administration order on the ground set out in
subsection (2)(b) unless the Secretary of State has certified to the court that the
case is one in which the Secretary of State considers (disregarding the objective
35
of the postal administration) that it would be appropriate to petition under
section 124A of the 1986 Act.
(4)
The court has no power to make a postal administration order in relation to a
company which—
(a)
is in administration under Schedule B1 to the 1986 Act, or
40
(b)
has gone into liquidation (within the meaning of section 247(2) of the
1986 Act).
(5)
A postal administration order comes into force—
(a)
at the time appointed by the court, or
(b)
if no time is appointed by the court, when the order is made.
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(6)
An interim order under subsection (1)(d) may, in particular—

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(a)
restrict the exercise of a power of the company or of its directors, or
(b)
make provision conferring a discretion on a person qualified to act as
an insolvency practitioner in relation to the company.
(7)
In the case of a foreign company, subsection (6)(a) is to be read as a reference
to restricting the exercise of a power of the company or of its directors—
5
(a)
within the United Kingdom, or
(b)
in relation to the company’s UK affairs, business or property.
(8)
For the purposes of this section a company is unable to pay its debts if—
(a)
it is a company which is deemed to be unable to pay its debts under
section 123 of the 1986 Act, or
10
(b)
it is an unregistered company which is deemed, as a result of any of
sections 222 to 224 of the 1986 Act, to be so unable for the purposes of
section 221 of the 1986 Act, or which would be so deemed if it were an
unregistered company for the purposes of those sections.
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Postal administrators
15
(1)
The postal administrator of a company—
(a)
is an officer of the court, and
(b)
in exercising and performing powers and duties in relation to the
company, is the company’s agent.
(2)
The management by the postal administrator of a company of any of its affairs,
20
business or property must be carried out for the purpose of achieving the
objective of the postal administration as quickly and as efficiently as is
reasonably practicable.
(3)
The postal administrator of a company must exercise and perform powers and
duties in the way which, so far as it is consistent with the objective of the postal
25
administration to do so, best protects—
(a)
the interests of the company’s creditors as a whole, and
(b)
subject to those interests, the interests of the company’s members as a
whole.
(4)
A person is not to be the postal administrator of a company unless qualified to
30
act as an insolvency practitioner in relation to the company.
(5)
If the court appoints two or more persons as the postal administrator of a
company, the appointment must set out—
(a)
which (if any) of the powers and duties of a postal administrator are to
be exercisable or performed only by the appointees acting jointly,
35
(b)
the circumstances (if any) in which powers and duties of a postal
administrator are to be exercisable, or may be performed, by one of the
appointees, or by particular appointees, acting alone, and
(c)
the circumstances (if any) in which things done in relation to one of the
appointees, or in relation to particular appointees, are to be treated as
40
done in relation to all of them.
71
Conduct of administration, transfer schemes etc
(1)
Schedule 10 contains provision applying the provisions of Schedule B1 to the
1986 Act, and certain other enactments, to postal administration orders.

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(2)
Schedule 11 contains provision for transfer schemes to achieve the objective of
a postal administration.
(3)
The power to make rules under section 411 of the 1986 Act is to apply for the
purpose of giving effect to this Part as it applies for the purpose of giving effect
to Parts 1 to 7 of that Act (and, accordingly, as if references in that section to
5
those Parts included references to this Part).
(4)
Section 413(2) of the 1986 Act (duty to consult Insolvency Rules Committee
about rules) is not to apply to rules made under section 411 of the 1986 Act as
a result of this section.
Restrictions on other insolvency procedures
10
72
Winding-up orders
(1)
This section applies if a person other than the Secretary of State petitions for the
winding-up of a company which is a universal service provider.
(2)
The court is not to exercise its powers on a winding-up petition unless—
(a)
notice of the petition has been served on the Secretary of State and
15
OFCOM, and
(b)
a period of at least 14 days has elapsed since the service of the last of
those notices to be served.
(3)
If an application for a postal administration order in relation to the company is
made to the court in accordance with section 68(1) before a winding-up order
20
is made on the petition, the court may exercise its powers under section 69
(instead of exercising its powers on the petition).
(4)
References in this section to the court’s powers on a winding-up petition are
to—
(a)
its powers under section 125 of the 1986 Act (other than its power of
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adjournment), and
(b)
its powers under section 135 of the 1986 Act.
73
Voluntary winding up
(1)
A company which is a universal service provider has no power to pass a
resolution for voluntary winding up without the permission of the court.
30
(2)
Permission may be granted by the court only on an application made by the
company.
(3)
The court is not to grant permission unless—
(a)
notice of the application has been served on the Secretary of State and
OFCOM, and
35
(b)
a period of at least 14 days has elapsed since the service of the last of
those notices to be served.
(4)
If an application for a postal administration order in relation to the company is
made to the court in accordance with section 68(1) after an application for
permission under this section has been made and before it is granted, the court
40
may exercise its powers under section 69 (instead of granting permission).