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Viscount Goschen: I have listened carefully to the reasoned arguments of the noble Lord about why the
commission needs to be able to apply this provision to a wide range of people. However, the Minister focused on the issue of operators whom the commission might suspect of operating illegally and thus contravening a number of the provisions he mentioned.But the drafting of the clause is extremely wide:
- "The Commission may, for any relevant purpose, serve notice on any person".
Lord Sainsbury of Turville: I hope that I have made two points clear. One is that, if accepted, the amendments would leave a substantial loophole which could be exploited by unlicensed operators. Secondly, as I hope I made clear, the power be used only in very specific circumstances. Given those circumstances, the provision is narrowly drawn. I believe it provides the right balance between giving operators enough information and not leaving it open to them to obtain any information that is not relevant.
Baroness Miller of Hendon: I have listened carefully to the Minister's reasonable explanation. I want to read it carefully, because I was concerned with the width of the amendment. If the noble Lord is saying that only unlicensed operators doing something criminal would not be caught if my amendment were accepted, clearly, I shall not press it. However, I shall examine the Minister's response to make sure that the difficulties that I have tried to highlight are covered; or I shall return with a different kind of amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 [Powers of entry and seizure]:
9.15 p.m.
Lord Sainsbury of Turville moved Amendment No. 47:
- Page 32, line 13, leave out (" 95(2)") and insert ("(Inviolability of mails)(2)").
Amendment No. 47 is a technical amendment to Clause 49 consequent on the deletion of Clause 95(2) and its replacement by subsection (2) of the new provisions on inviolability in Amendment No. 102.
Amendment No. 74 restricts the offence in Clause 83 in respect of mail bags to intentionally opening. There is no need to cover intentionally delaying a mail bag since, if it contains postal packets, an offence will be committed in any event. Delaying an empty mail bag should be an offence.
Amendment No. 75 amends Clause 83 to include a number of cases where delaying or opening a postal packet or opening a mail bag is not to be an offence: first, if this Bill or another enactment provides appropriate authority; secondly, where there is authority from a directly applicable Community provision; and, thirdly, where the terms and conditions applicable to the packet's transmission by post allow such actions. There is also an exception for delay caused by industrial action in contemplation or furtherance of a trade dispute (as defined in subsection 1D). This was a matter that caused some concern when the clause was debated in another place and we are happy to offer this clarification.
Amendment No. 76 amends Clause 84, which applies to persons other than those engaged in the business of a postal operator, in the same way as Amendment No. 74 amended Clause 83 so that delaying a mail bag is not in itself an offence. Delaying a postal packet in a mail bag will be an offence.
Amendment No. 77 provides for the new exceptions to the offence in Clause 83 set out in subsections (1A) to (1D) in Amendment No. 75 to apply also to the offence in Clause 84.
Amendment No. 78 amends Clause 84 to add a new subsection to make it clear that the offences in Clause 84(2) of opening a postal packet without reasonable excuse and intending to act to a person's detriment, by a person who knows or reasonably suspects the packet has been wrongly delivered to him, will not apply where opening is under the authority of this Act or another enactment; where there is authority from a directly applicable Community provision; or where the terms and conditions applicable to the transmission by post of the packet allow such actions.
Amendment No. 88 deletes subsections (1) to (3) of Clause 95. These provisions are replaced by the new provisions on inviolability of the mail set out in Amendment No. 102.
Amendment No. 102 inserts the provisions concerning inviolability of the mail. It extends the protection previously afforded to postal packets carried by the Post Office to those carried by all postal operators. It provides postal packets in the course of transmission by post with the same immunity from examination, seizure or detention under a relevant power conferred by this Bill or any other enactment; from seizure under distress or in execution (or in Scotland any diligence); and from retention by virtue of a lien that they would have if they were the property of the Crown.
Postal packets carried by the Post Office have always had such protection and the amendment recognises that in today's market, where there are many postal operators, that protection should be extended to all postal packets. There are, however,
exceptions to the general presumption that the mail is inviolable and these are set out in subsection (3). Subsection (4) gives the Secretary of State power to modify by order subsection (3) to enable the protections to be extended or narrowed to ensure that they are appropriate now and in the future.Amendments Nos. 106 to 109 amend Clause 105, which deals with the conditions of transit of postal packets. The amendments clarify what action a postal operator may take in relation to a postal packet which he knows, or reasonably suspects, is being sent by post in contravention of Clause 85 of the Bill. Clause 85 prohibits the sending of certain articles through the post, including indecent or obscene material, and any article, creature or thing of any kind likely to injure a postal operator's employees or other postal packets.
Amendment No. 106 removes the words "if necessary" from Clause 105. On reflection, the Government consider that these words are superfluous as it is likely that a postal operator will always consider it necessary to detain a postal packet if he knows or suspects that it is being sent in contravention of Clause 85.
Amendment No. 107 removes the words "in the post office" from Clause 105. The Government consider that to restrict the opening of postal packets to post offices will not always be appropriate. For example, it would not be appropriate to require that a postal operator should open a postal packet that contains filth or a noxious substance in a post office.
Amendment No. 108 expressly provides that a postal operator can destroy or otherwise dispose of postal packets that it knows or suspects are being sent in contravention of Clause 85. Such a power is considered appropriate to allow the postal operator to destroy or dispose of postal packets that may be a danger to its employees or other postal packets. It also makes it clear that, having detained a postal packet, the postal operator will not be required to keep it indefinitely.
Amendment No. 109 makes it clear that the provisions in Clause 105 should not be regarded as restricting any other powers which the postal operator may have in relation to the packet, for example under the terms and conditions applicable to its transmission by post.
Amendments Nos. 119, 120 and 123 amend the order and regulation-making powers of the Bill to add the new order-making power in subsection (4) of the new clause on inviolability of the mail. Modifications of the new clause can be made by modifying enactments or by a statutory instrument subject to the negative resolution procedure.
This package of amendments clarifies and, we hope, improves the provisions in the Bill which protect postal packets in the course of transmission by post. I beg to move.
On Question, amendment agreed to.
Clause 49, as amended, agreed to.
Clause 52 [Provision of advice and information to public authorities and licence holders]:
Baroness Miller of Hendon moved Amendment No. 48:
- Page 33, line 24, leave out paragraph (d).
- "The Government wants to see a strong consumer body at the heart of the regulatory system".
- "championing [consumers'] interests and ensuring that their voice is heard by the Post Office, the Regulator and the Government".
I am sorry to have troubled your Lordships with such lengthy quotations but I wanted to demonstrate that it is clear that the White Paper envisaged that the function of the Council would only relate to the operation of the Post Office and the licensed area. But subsection (2)(d) goes much further than that. It enables the council to provide advice and information, represent the views of postal users and, most sinister of all, make proposals to "any other person" whose activities may affect the interests of users of relevant postal services. Any other person? Not just the Post Office or licensees? That could involve a wide range of persons--advertising agencies, printers, stationery manufacturers and retailers, just to give a few examples. I believe that is an invitation to empire building and poking of noses. It is not necessary to become involved in that.
My honourable friend the Member for Rutland and Melton pointed out that persons in the unlicensed area who are the recipients of gratuitous advice and proposals from the council will all have to be told the views of users of postal services. They are not obliged to take the slightest bit of notice of anything that is said to them. I can imagine the council knocking on the door of a motor cycle messenger service to offer some advice to a leather-clad helmeted occupant only to be told, in the words of my honourable friend, "push off".
In his reply the Minister for Competition told the Committee in the other place that,
- "it seems reasonable to provide advice and information to everyone involved in providing a postal service, not only licence holders".
- "it is significant that the clause does not place any duties or onus on the people who receive the representations".
The Minister suggested that there may be an increasing number of unlicensed operators who might be grateful for the council's representations and advice as free market research. I hope that the Minister will be able to find a less fatuous justification for rejecting this amendment, if that is what he is minded to do.
The Government have already admitted that the provision has no effect in law whatsoever. What are the Government doing in asking Parliament to pass legislation that has no effect whatsoever? The Bill has considerably extended the role of the council from that set out in the White Paper so that its remit includes both the regulated and unregulated parts of the industry.
This amendment will restore the role of the council that was put forward in the White Paper. I beg to move.
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