Postal Services Bill

House of Commons

Session 2010 - 11
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Postal Services Bill

Postal Services Bill
Schedule 8 — Information provisions
Part 1 — Requirements to provide information to OFCOM
91

(f)
ascertaining or verifying charges payable under Schedule 4,
(g)
identifying markets and carrying out market analyses or
assessments in accordance with, or for the purposes of, any
enactment relating to postal services, and
(h)
statistical purposes connected with the carrying out of any of
5
OFCOM’s functions in relation to postal services.
      (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
10
2     (1)
This paragraph limits the circumstances in which OFCOM may require the
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—
15
(a)
the requirement is imposed for the purpose of investigating a matter
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,
20
(c)
the condition in question is one which OFCOM have reason to
suspect is one that has been, or is being, contravened, or
(d)
the condition in question falls within section 40(2)(b).
      (3)
A “condition of general application” means a regulatory condition other
than a designated USP condition, a USP access condition or a USP
25
accounting condition.
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
30
connection with a postal service,

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
35
(b)
in the interest of users of postal services.
      (3)
OFCOM may also 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, for use for such statistical purposes as they think fit,
with information relating to the provision of postal services.
      (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.
45

Postal Services Bill
Schedule 8 — Information provisions
Part 2 — Enforcement
92

Manner in which information may be required
4     (1)
A person required to provide information under paragraph 1 or 3 must
provide it in such manner and within such reasonable period as may be
specified by OFCOM.
      (2)
OFCOM must require the provision of information under paragraph 1 or 3
5
by a demand which—
(a)
describes the required information, and
(b)
sets out OFCOM’s reasons for requiring it.
      (3)
The reasons for requiring information for statistical purposes under
paragraph 1 or 3 must set out the statistical purposes for which the
10
information is required.
      (4)
A demand for information under paragraph 1 or 3 must be contained in a
notice served on the person from whom the information is required.
      (5)
This is subject to an exception in the case of information required by OFCOM
for the purpose of ascertaining who is liable to charges under Schedule 4.
15
      (6)
In that case, the demand—
(a)
may be made by being published in such manner as OFCOM
consider appropriate for bringing it to the attention of the persons
described in the demand as the persons from whom the information
is required, and
20
(b)
may take the form of a general demand for a person so described to
provide information when specified conditions relevant to the
person’s liability to the charges are satisfied.
Part 2
Enforcement
25
Notification of contravention of information requirements
5     (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 requirement imposed under paragraph
1 or 3.
30
      (2)
A notification under this paragraph must—
(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
35
which the person notified has an opportunity—
(a)
to make representations about the matters notified, and
(b)
to comply with notified requirements of which the person remains in
contravention.
      (4)
The specified period must be at least one month beginning with the day after
40
the day the notification is given unless—
(a)
OFCOM and the person notified agree a shorter period, or

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Schedule 8 — Information provisions
Part 2 — Enforcement
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(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.
      (5)
A contravention is a repeated contravention, in relation to a notification with
respect to the contravention, if—
5
(a)
a previous notification has been given in respect of the same
contravention or in respect of another contravention of the same
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 7(2)
10
that the contravention to which the previous notification related did
occur.
      (6)
OFCOM may (on one or more occasions) extend the specified period.
6     (1)
A notification under paragraph 5—
(a)
may be given in respect of more than one contravention, and
15
(b)
if it is given in respect of a continuing contravention, may be given
in respect of any period during which the contravention has
continued.
      (2)
If a notification under paragraph 5 has been given to a person in respect of a
contravention of a requirement, OFCOM may give a further notification in
20
respect of the same contravention of that requirement only 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
25
(c)
the earlier notification has been withdrawn without a penalty having
been imposed in respect of the notified contravention.
Penalties for contravention of information requirements
7     (1)
This paragraph applies if—
(a)
a person has been given a notification under paragraph 5,
30
(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—
(a)
they are satisfied that the person has, in one or more of the respects
35
notified, been in contravention of a requirement specified in the
notification under paragraph 5,
(b)
the person has not, during the period allowed under that paragraph,
complied with the notified requirement, and
(c)
no proceedings for an offence under paragraph 13 have been
40
brought against the notified person in respect of the contravention.
      (3)
If a notification under paragraph 5 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
45
contravention specified in the notification.

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Schedule 8 — Information provisions
Part 2 — Enforcement
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      (5)
The amount of a penalty imposed under this paragraph 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.
      (6)
The amount must not be more than £50,000.
5
      (7)
In making the determination of the amount of the penalty OFCOM must
have regard to—
(a)
any representations made to them by the person, and
(b)
any steps taken by the person towards complying with the
requirements contraventions of which have been notified to the
10
person under paragraph 5.
      (8)
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
15
period within which the penalty is to be paid.
      (9)
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.
20
     (10)
The Secretary of State may by order substitute a different maximum penalty
for the maximum penalty for the time being specified in sub-paragraph (6).
     (11)
An order under sub-paragraph (10) is subject to affirmative resolution
procedure.
Suspending service provision for contravention of information requirements
25
8     (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
contravening person to provide postal services—
(a)
is suspended (either generally or in relation to particular services), or
30
(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.
      (4)
Condition A is that the contravening person is or has been in serious and
repeated contravention of requirements imposed under paragraph 1 or 3.
35
      (5)
Condition B is that an attempt, by the imposition of penalties under
paragraph 7 or the bringing of proceedings under paragraph 13, to secure
compliance with the contravened requirements has failed.
      (6)
Condition C is that the giving of the direction is—
(a)
appropriate, and
40
(b)
proportionate to the seriousness (when repeated as they have been)
of the contraventions.

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Schedule 8 — Information provisions
Part 2 — Enforcement
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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—
(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 operator’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 paragraph 8 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 8 there are repeated contraventions by a
person of requirements imposed under paragraph 1 or 3 to the extent that—
(a)
in the case of a previous notification given to that person under
paragraph 5, OFCOM have determined for the purposes of
paragraph 7(2) that a contravention did occur, and
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 requirement imposed
under paragraph 1 or 3.
      (6)
For the purposes of sub-paragraph (5) it does not matter whether the
35
notifications relate to the same contravention or to different contraventions
of the same or different requirements or of requirements under different
paragraphs.
10    (1)
OFCOM are not to give a direction under paragraph 8 unless they have—
(a)
notified the contravening person of the proposed direction and of the
40
conditions (if any) which they are proposing to impose by that
direction,
(b)
provided the contravening person with an opportunity of making
representations about the proposals and of proposing steps for
remedying the situation, and
45
(c)
considered every representation and proposal made to them during
the period allowed by them for the contravening person to take
advantage of that opportunity.

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Schedule 8 — Information provisions
Part 2 — Enforcement
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      (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
11).
11    (1)
In an urgent case, OFCOM must, as soon as reasonably practicable after
5
giving a direction under paragraph 8, 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.
      (2)
A case is urgent for the purposes of this paragraph if OFCOM—
10
(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
(b)
decide for that reason to act in accordance with this paragraph
15
instead of paragraph 10.
      (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
national security,
20
(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.
Enforcement of directions under paragraph 8
25
12    (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
(b)
in contravention of a restriction contained in a direction under that
paragraph.
30
      (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, and
(b)
on conviction on indictment, to a fine.
Offences in connection with information requirements
35
13    (1)
A person who fails to provide information in accordance with a requirement
imposed under paragraph 1 or 3 commits an offence.
      (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, and
40
(b)
on conviction on indictment, to a fine.
      (3)
A person does not commit an offence under sub-paragraph (1) if—
(a)
it was not reasonably practicable to comply with the requirement
within the period specified by OFCOM, and

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Schedule 8 — Information provisions
Part 3 — Supplementary provisions
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(b)
the person has taken all reasonable steps to provide the information
after the end of that period.
      (4)
A person commits an offence if—
(a)
in pursuance of a requirement under paragraph 1 or 3, the person
provides any information that is false in any material particular, and
5
(b)
at the time the information is provided, the person knows it to be
false or is reckless as to whether or not it is false.
      (5)
A person guilty of an offence under sub-paragraph (4) is liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum, and
10
(b)
on conviction on indictment, to a fine or imprisonment for a term not
exceeding two years or both.
      (6)
Proceedings for an offence under sub-paragraph (1) may be brought in
respect of a contravention by a person of a requirement imposed under
paragraph 1 or 3 only if—
15
(a)
OFCOM have given the person a notification under paragraph 5 in
respect of the contravention,
(b)
the period allowed under that paragraph for doing the things
mentioned in sub-paragraph (3) of that paragraph has ended
without the required information having been provided, and
20
(c)
OFCOM have not imposed a financial penalty under paragraph 7 in
respect of the contravention.
Part 3
Supplementary provisions
Statement of policy on information gathering
25
14    (1)
OFCOM must prepare and publish a statement of their general policy with
respect to—
(a)
the exercise of their powers under paragraph 1 or 3, and
(b)
the uses to which they are proposing to put information obtained
under those paragraphs.
30
      (2)
OFCOM may from time to time revise the statement.
      (3)
Where OFCOM make or revise a statement under this paragraph, they must
publish the statement in such manner as they consider appropriate for
bringing it to the attention of the persons who, in their opinion, are likely to
be affected by it.
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      (4)
In exercising the powers conferred by this Schedule, OFCOM must have
regard to the statement for the time being in force under this paragraph.
Provision of information by OFCOM
15    (1)
OFCOM must comply with a request made by a person—
(a)
to notify the person whether or not a notification is required to be
40
submitted by the person under regulations made under section 46,