House of Commons portcullis
House of Commons
Session 2010 - 11
Internet Publications
Other Bills before Parliament

Postal Services Bill


Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements

84

 

Enforcement notification for contravention of regulatory requirements

5     (1)  

This paragraph applies if—

(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

5

(c)   

the period allowed for the making of the representations has ended.

      (2)  

OFCOM may give the person an enforcement notification if they are

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

10

(b)   

has not, during the period allowed under that paragraph, taken all

such steps as they consider appropriate—

(i)   

for complying with that requirement, and

(ii)   

for remedying the consequences of the notified contravention

of that requirement.

15

      (3)  

An enforcement notification is a notification which imposes one or both of

the following requirements on the person—

(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

20

the notified contravention as may be so specified.

      (4)  

A decision of OFCOM to give an enforcement notification to a person—

(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

25

(b)   

must fix a reasonable period for the taking of the steps required by

the notification.

      (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—

30

(a)   

for an injunction,

(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.

Penalties for contravention of regulatory requirements

35

6     (1)  

This paragraph applies (in addition to paragraph 5) if—

(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.

40

      (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

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.

45

 
 

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements

85

 

      (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

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

5

notification given under paragraph 5.

      (6)  

If OFCOM impose a penalty on a person under this paragraph, they must—

(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

10

period within which the penalty is to be paid.

      (7)  

A penalty imposed under this paragraph—

(a)   

must be paid to OFCOM, and

(b)   

if not paid within the period fixed by them, is to be recoverable by

them accordingly.

15

7     (1)  

The amount of a penalty imposed under paragraph 6 on a person is to be

such amount as OFCOM determine to be—

(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

20

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.

      (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

25

services, and

“the relevant period” means—

(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

30

2,

(b)   

in the case of a person who at that time has been carrying on

postal services business for under a year, the period, ending

with that time, during which the person has been carrying it

on, and

35

(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

the time when the person ceased to carry it on.

      (4)  

In making the determination of the amount of the penalty OFCOM must

have regard to—

40

(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

person under paragraph 2, and

(c)   

any steps taken by the person for remedying the consequences of

45

those contraventions.

 
 

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements

86

 

      (5)  

An order under this paragraph is subject to affirmative resolution

procedure.

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

5

respect to a contravention by a person (“the contravening person”) of

a regulatory requirement,

(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

10

under this paragraph.

      (2)  

A case is urgent for the purposes of this paragraph if the contravention has

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,

15

(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.

      (3)  

OFCOM may, in a notification under paragraph 2 with respect to the

20

contravention, specify a period of less than one month for doing the things

mentioned in sub-paragraph (3) of that paragraph.

      (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

25

(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

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—

30

(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

direction or with the postponement of its effect, may impose such

35

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

payments—

40

(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.

      (4)  

OFCOM may revoke a direction under this paragraph or modify its

45

conditions—

 
 

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements

87

 

(a)   

with effect from such time as they may direct,

(b)   

subject to compliance with such requirements as they may specify,

and

(c)   

to such extent and in relation to such services, or parts of a service, as

they may determine.

5

10    (1)  

As soon as reasonably practicable after giving a direction under paragraph

8 to a person, OFCOM must give the person—

(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.

10

      (2)  

As soon as reasonably practicable after the period allowed by OFCOM for

making those representations has ended, OFCOM must determine—

(a)   

whether the contravention did occur, and

(b)   

whether the circumstances made it an urgent case justifying the

giving of the direction.

15

      (3)  

If they decide that the contravention did occur and that the direction was

justified, they may confirm the direction.

      (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

20

direction was given.

      (6)  

Conditions included in a direction as a result of paragraph 9(3) have effect

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

25

providing one or more postal services (“the contravening person”).

      (2)  

A direction under this paragraph is 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.

30

      (3)  

OFCOM may give a direction under this paragraph only if they are satisfied

that conditions A to C are met.

      (4)  

Condition A is that the contravening person is or has been in serious and

repeated contravention of regulatory requirements.

      (5)  

Condition B is that an attempt, by the giving of enforcement notifications

35

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

(b)   

proportionate to the seriousness (when repeated as they have been)

40

of the contraventions.

 
 

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements

88

 

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.

      (2)  

A direction under paragraph 11—

(a)   

in providing for the effect of a suspension or restriction to be

5

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

direction or with the postponement of its effect, may impose such

conditions on the contravening person as appear to OFCOM to be

10

appropriate for the purpose of protecting the users of that person’s

services.

      (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

15

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.

      (4)  

OFCOM may revoke a direction under this paragraph or modify its

conditions—

20

(a)   

with effect from such time as they may direct,

(b)   

subject to compliance with such requirements as they may specify,

and

(c)   

to such extent and in relation to such services, or parts of a service, as

they may determine.

25

      (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

paragraph 2, OFCOM have determined for the purposes of

paragraph 5(2) or 6(2) that a contravention did occur,

30

(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,

and

(c)   

the previous notification and the subsequent ones all relate to

35

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—

(a)   

notified the contravening person of the proposed direction and of the

conditions (if any) which they are proposing to impose by that

40

direction,

(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

45

the period allowed by them for the contravening person to take

advantage of that opportunity.

      (2)  

That period must be at least one month beginning with the day after the day

the notification is given.

 
 

Postal Services Bill
Schedule 7 — Enforcement of regulatory requirements

89

 

      (3)  

This paragraph does not apply in an urgent case (as to which, see paragraph

14).

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

5

the direction and of any of its conditions, and

(b)   

an opportunity of proposing steps to remedy the situation.

      (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

10

the direction, for the making and consideration of representations,

and

(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

15

create 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

20

(c)   

serious economic or operational problems for users of postal

services.

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

25

under paragraph 8 or 11, or

(b)   

in contravention of a restriction contained in a direction under either

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

30

maximum, and

(b)   

on conviction on indictment, to a fine.

Civil liability for breach of regulatory requirements etc.

16    (1)  

The duty of a person to comply with—

(a)   

regulatory requirements,

35

(b)   

requirements imposed by an enforcement notification under

paragraph 5, or

(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.

40

      (2)  

Sub-paragraphs (3) and (4) apply where a duty is owed by virtue of sub-

paragraph (1) to a person.

      (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.

 
 

Postal Services Bill
Schedule 8 — Information provisions
Part 1 — Requirements to provide information to OFCOM

90

 

      (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

(b)   

is done wholly or partly for achieving that result,

           

is actionable at the suit or instance of that person.

5

      (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

(b)   

exercised all due diligence,

           

to avoid contravening the requirement or condition in question.

10

      (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

the proceedings, the proceedings are not to be carried on except in

compliance with those conditions.

15

Schedule 8

Section 53

 

Information provisions

Part 1

Requirements to provide information to OFCOM

Information required for purposes of OFCOM’s functions in relation to postal services

20

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.

      (2)  

The persons within this sub-paragraph are—

(a)   

a person who is, or has been, a postal operator,

25

(b)   

a person who provides, or has provided, access points or other

facilities for use in connection with a postal service, and

(c)   

a person not falling within paragraph (a) or (b) who appears to

OFCOM to have information required by them for the purpose of

carrying out any of their functions in relation to postal services.

30

      (3)  

The required information may, in particular, include information required

for any one or more of the following purposes—

(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

35

for the time being in force continues to be effective for the purpose

for which it was made,

(c)   

making a designation in accordance with regulations made under

section 34,

(d)   

carrying out a review under section 34 or 42,

40

(e)   

ascertaining or verifying amounts payable by virtue of section 44,

 
 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2010
Revised 10 December 2010