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Lord Skelmersdale: My Lords, I am grateful to the Minister for his explanation. However, I am slightly confused about some of the words in new subsection (3A). The fourth line from the bottom of Amendment No. 2 refers to,
- "any person"--
- "who is treated by the Secretary of State as a universal service provider".
Lord Sainsbury of Turville: My Lords, I believe that it is simply because previously a "universal service provider" was defined by the fact that the provider was notified to the EU. In this case, the provider has been designated as a person by the Secretary of State. I believe that in this context it amounts to the same thing. Clearly there are regulations which refer to the Secretary of State's ability to designate someone, but in this case the basis is that the provider has already been designated.
Lord Skelmersdale: Yes, my Lords, but I am still confused. To be designated is one thing. But that becomes a fact--he is a universal service provider. Surely to be treated by the Secretary of State as a universal service provider is something else. However, I shall not waste the time of the House now. Perhaps the noble Lord would again be very generous and write one of his copious letters to me.
On Question, amendment agreed to.
Clause 13 [Licences: conditions and other provisions]:
Lord Sainsbury of Turville moved Amendment No. 3:
- Page 9, line 31, leave out from ("of") to end of line and insert ("the provision of any postal services or the doing of anything else to which the condition relates").
On Question, amendment agreed to.
Clause 30 [Financial penalties]:
Lord Sainsbury of Turville moved Amendment No. 4:
- Page 21, line 12, at end insert--
The noble Lord said: My Lords, in moving Amendment No. 4, I wish to speak also to Amendment No. 14. These amendments will place a cap on the financial penalties which can be imposed on licence holders for a contravention of a licence condition. Such a penalty will be limited to a
Under Clause 30 as currently drafted, there is no specific limit on penalties for breaches of licence conditions, although there is a requirement that they must be reasonable in all the circumstances of the case. We have previously argued, and continue to believe, that the requirement that the fines should be reasonable would ensure that any fines are proportionate and not excessive in the circumstances of a particular case. However, we have reflected on the concerns expressed in Committee about the concept of unlimited fines and also in relation to similar provisions in the Utilities Bill.
Following that consideration, the Government have decided that it would be appropriate to amend the Bill so as to limit financial penalties to 10 per cent of the turnover of the licence holder on whom the penalty is imposed, with detailed provisions for determining that turnover to be set out in an order made by the Secretary of State. That will bring the provisions of the Postal Services Bill into line with those of the Competition Act 1998 and with those now included in the Utilities Bill. I beg to move.
Baroness Miller of Hendon: My Lords, we have no difficulty in accepting this amendment. We argued for it quite strongly either in Committee or on Report. I remember that the noble Lord, Lord Dearing, supported it because we did not like the fact that the Minister said that it would be "reasonable". We would then have needed a discussion as to what is "reasonable". Therefore, we thank the Minister for bringing it back in this form.
Lord Dearing: My Lords, I congratulate the Minister on a very reasonable amendment.
On Question, amendment agreed to.
Clause 45 [Annual and other reports: the Commission]:
Lord Sainsbury of Turville moved Amendment No. 5:
The noble Lord said: My Lords, this amendment will require the Postal Services Commission to include in its annual report each year a report on the manner in which it has complied with its obligations under the Postal Services Directive.
The Government are bringing forward this amendment in response to concerns expressed in Committee by the noble Baroness, Lady Miller. In the debate on a proposed amendment to Clause 13, I agreed to consider further whether the Bill should include an express reference to the duty of the Postal Services Commission to comply with the current and any future European directive on postal services.
As I said before, the European Postal Services Directive has direct effect, and bodies treated as carrying out functions of the state, such as the Postal Services Commission, are therefore obliged to comply with its requirements. That is reinforced by the explicit provisions in Article 22 of the directive which provide that the national regulatory authority--in this country, the Postal Services Commission--shall, as a particular task, ensure compliance with the obligations which arise from that directive.
The commission's responsibilities are quite clear and would not be made clearer by imposing through the Bill a general duty on the commission to comply with the directive. To do so would be unnecessary and unprecedented. However, in recognition of the noble Baroness's concerns, we have considered ways, other than a general duty, of highlighting in the Bill the commission's role in ensuring compliance with obligations arising from the directive. We believe that the best way to achieve that is to require the commission to include in its annual report each year a report on the manner in which it has complied with its obligations under the Postal Services Directive.
An annual report required under Clause 45 will be laid before Parliament and published by the Secretary of State. It will therefore be possible for Parliament and any other interested parties to see and comment on how the commission is carrying out its duties in relation to the obligations under the directive.
With this amendment the commission will be under a duty not only to ensure compliance of universal service providers with the directive, but it will also be required to report on how it has done so, year on year. Exactly how it ensures compliance will be a matter for the commission. It may be through licence conditions, but we believe that we should not rule out other ways of ensuring compliance. I beg to move.
Baroness Miller of Hendon: My Lords, it looks like three out of three so far. I am extremely grateful to the Minister, particularly because I remember feeling most embarrassed during the Report stage that, according to the Minister, I moved so many defective amendments. It now seems that the amendments that I moved that were not defective have found a sympathetic ear.
On Question, amendment agreed to.
Clause 54 [Exercise of functions: general]:
Lord Skelmersdale moved Amendment No. 6:
The noble Lord said: My Lords, Amendments Nos. 6 and 7 go together, and Amendment No. 8 is the Government's formulation of exactly the same thing. Throughout the various stages of the Bill concern has been expressed as to whether a committee for England would be established under Clause 54. Ultimately, the Minister accepted that there should be one. Therefore, the question now is: which formulation is better? I only speak now, rather than not move Amendments Nos. 6 and 7, in order to give the Minister the opportunity to say whether, in the eyes of his department and the
Viscount Goschen: My Lords, after the detailed debates about principle that we have had throughout the Bill, I am delighted to see that my noble friend Lord Skelmersdale and other Members of the House eventually have succeeded in persuading the Minister that, if the Bill were left unamended, the tragic consequence could arise of England having no committee. Personally, I prefer my noble friend's drafting on the grounds that it is shorter. The words "at least" would tend to imply to most people that there could be more. Therefore, with those reservations, I prefer my noble friend's drafting. However, it would be churlish not to congratulate the Minister wholeheartedly on his approach to the moving of his slightly longer amendment.
Baroness Miller of Hendon: My Lords, I, too, congratulate the Minister. This is the third time that this amendment has been discussed in your Lordships' House: first in Committee, when I think that I added my name to it, then on Report, and now today. I would not dream of saying whether the Minister's amendment was better drafted than that of my noble friend Lord Skelmersdale, but it would be right for me to say, as my noble friend Lord Goschen did, that we prefer the wording of our noble friend Lord Skelmersdale. We are, however, grateful to the Minister.
Lord Sainsbury of Turville: My Lords, I shall respond to Amendments Nos. 6 and 7 and speak to Amendments Nos. 8 and 22 to 28. I do not want to spend too much time on the issue, but it is important that we get it right.
When I first saw Amendments Nos. 6 and 7, I thought that they were better because they were short, elegant and simple. However, having looked at the issue in detail, there are good reasons for preferring our wording. The draftsman fulfils a useful function in such circumstances.
I shall try to explain why I hope to convince the noble Lord, Lord Skelmersdale, to withdraw his amendment and to accept the government amendments. On Report, in response to an amendment he had tabled, I agreed to consider whether the Government should table an amendment to place a duty on the new consumer council to establish, at the very least, a committee in England to help it have regard to the needs of users in England. Amendment No. 8 does that, providing that the council must establish at least one committee in England. That duty can be met by establishing either a committee for the whole of England or one for an area within England. The amendment will not prevent the council from doing both. The Government anticipate that if the council decides not to establish a committee
Amendments Nos. 22 to 28 are, for the most part, consequential amendments to Schedule 2. The intention is to ensure that the rules governing the establishment of any committee for England are consistent with those applying to the committees for Scotland, Wales and Northern Ireland and that the rules relating to any committee for any area of England will be consistent with those for any committees for areas within Scotland, Wales and Northern Ireland.
The government amendments fulfil what the noble Lord, Lord Skelmersdale, seeks. However, his amendments would have some unwanted consequences. First, they appear to permit more than one committee for England as a whole while removing the express power for the council to set up committees for areas within England. Secondly, they would require each chairman of the committees for England to be a member of the council by virtue of Schedule 2(1)(b). Neither of us would want either of those situations to arise. In view of that, I hope that the noble Lord will feel that, with the help of the draftsman, we have been able to fulfil his intentions even better than his amendments would and that he will therefore withdraw Amendment No. 6.
("(1A) No such penalty shall exceed 10 per cent. of the turnover of the licence holder (determined in accordance with provisions specified in an order made by the Secretary of State).").
Page 29, line 32, at end insert--
("( ) a report as to the manner in which the Commission has complied with its obligations under the Postal Services Directive,").
Page 35, line 4, at end insert ("and
(iv) at least one committee for England,").
5.30 p.m.
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