Postal Services Bill (Hansard, 11 July 2000)

HL Deb 11 July 2000 vol 615 cc167-218 167

§ 5.13 p.m.

§ Lord Carter
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Postal Services Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Read a third time.

§ Clause 4 [Provision of a universal postal service: meaning]:

§ The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville) moved Amendment No. 1: Page 2, line 32, leave out ("the") and insert ("a").

§ The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 3, 11 and 15 to 19. These are drafting amendments intended to tidy up or clarify the Bill. Amendment No. 1 is a drafting amendment to the definition of a universal postal service. It is intended to clarify that Clause 4(1)(b) is a separate obligation which goes wider than Clause 4(1)(a). The effect of the amendment is that a 168 universal postal provider is to provide a postal service for all relevant postal packets, including cross-border mail.

§ Amendment No. 3 is a drafting amendment to the exceptions from Clause 13(6) contained in subsection (7). Subsection (6) provides that, subject to subsection (7), no action shall lie or in Scotland be competent in respect of a contravention by a licence holder of a condition of his licence. Subsection (7) sets out exceptions to this. The Government's intention with these provisions is to prevent any action for breach of a condition (other than by enforcement notice or financial penalty under the provisions of this part of the Bill) but without prejudice to any other right of action which could arise under general law in relation to the underlying act or omission. Amendment No. 3 amends the wording of the exception at subsection (1)(a) to ensure that these other rights of action remain available where there is an act or omission which takes place in the course of doing anything to which the condition relates. Depending on the terms of the licence, this could go beyond the provision of letters or a universal postal service.

§ Amendment No. 11 is a simple drafting amendment correcting an error in the existing text by replacing the reference to "any other" with "a" foreign administration.

§ Amendments Nos. 15, 16, 17 and 18 together clarify the definition of a "letter" for the purposes of this Bill. First, they put beyond any doubt that "letter" does not include an electronic communication. Amendment No. 18 provides that the reference to a letter being conveyed and delivered "otherwise than electronically" (itself inserted by Amendment No. 15 into the definition of "letter" in Clause 125(1)) is a reference to a communication to be conveyed and delivered otherwise than by means of a telecommunications system (within the meaning of the Telecommunications Act 1984) or by other means while in electronic form. This means that a letter on a disk sent by post will be a postal packet for the purposes of this Bill but will not be a letter. Secondly, they spell out that a postal packet containing a letter is a letter. Thirdly, they allow a communication to satisfy the definition of letter even where the communication is addressed to a person and not an address.

§ As intended in the existing definition of a letter, hybrid mail services remain caught within the definition of a letter only when the communication is not being conveyed or delivered electronically. Postal operators will, of course, remain free to offer hybrid mail services so long as they operate either outside the licensed area or, if they are operating within the licensed area, they have a licence to do so for that part of the service where communications are conveyed or delivered otherwise than electronically.

§ Amendment No. 19 is a minor consequential amendment to the list of expressions in Clause 126. It extends the reference to the meaning of letter to include the new provisions on the meaning of 169 conveyed and delivered otherwise than electronically (the subject of Amendment No. 18). I beg to move that these amendments be accepted.

§ Baroness Miller of Hendon
My Lords, we thank the Minister for the change from "the" to "a" which we believe meets in some way the amendment we tabled on Report.
On Question, amendment agreed to.

§ Lord Sainsbury of Turville moved Amendment No. 2: Page 3, line 5, at end insert— ("(3A) If no-one falls within subsection (3) because there is no Community obligation to notify the European Commission of the identity of a person providing a universal postal service or a part of such a service in the United Kingdom, references in this Act to a universal service provider shall be construed as references to any person who is treated by the Secretary of State as a universal service provider for the purposes of this Act and on whom the Secretary of State has served a notice informing him of that fact.").

§ The noble Lord said: In moving the amendment, I speak also to Amendment No. 20.

§ These are technical amendments. The effect of Amendment No. 2 is to ensure that it will be possible to identify a universal service provider or providers in the United Kingdom for the purposes of the Bill in the event that the current requirement to notify the Commission of their identity under the Postal Services Directive lapses.

§ Article 4 of the directive requires each member state to notify the European Commission of the identity of its universal service postal provider or providers. Clause 4 of the Bill is drafted in this context. Subsection (3) of Clause 4 sets out the meaning of a universal service provider for the purposes of the Bill. It provides that any person whose identity is notified by the Secretary of State to the European Commission as a person providing a universal service (or part of a universal service) within the UK (in accordance with Article 4 of the Postal Services Directive) and who has been served with a notice of that fact by the Secretary of State is to be taken to be a universal service provider for the purposes of the Bill.

§ We see no problem with this construction for the foreseeable future. However, Article 27 of the directive provides that the provisions of the directive (with the exception of Article 26) shall apply only until December 2004 unless otherwise decided in accordance with Article 7(3). Article 7(3) concerns further provisions for the completion of the internal market of postal services. There is, therefore, the possibility that Article 4 of the directive could lapse.

§ We expect that it is unlikely that this provision of the directive would lapse without being replaced by some further Community provision. But we cannot rule it out entirely. Given the importance attached in the Bill to the concept of a universal service provider, we consider that it is sensible to provide on its face for a universal service provider to be capable of being identified in the unlikely event that the relevant provisions of the directive lapse.

170

§ Amendment No. 20 is a minor consequential amendment to the list of expressions in Clause 126. It extends the reference to universal service provider to include the new provisions at Clause 4, identifying a universal service provider in the event of the lapse of an EU directive—the subject of Amendment No. 2. I beg to move.

§ 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"— I underline the next words— who is treated by the Secretary of State as a universal service provider". Surely he either is or is not a universal service provider. Why should he be "treated" by the Secretary of State as such?

§ 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 2I, line 12, at end insert— ("(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).").

§ 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 171 maximum of 10 per cent of the turnover of the licence holder, determined in accordance with provisions to be specified in an order made by the Secretary of State.

§ 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: 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,").

§ 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.

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§ 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 detective 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: Page 35, line 4, at end insert ("and (iv) at least one committee for England.").

§ 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 173 draftsmen, his own amendment is better than mine. I suspect that he will say that it is, in which case, obviously, I shall withdraw my amendment.

§ 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.

§ 5.30 p.m.

§ 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 174 for the whole of England it will seek to establish a number of area committees covering the whole of England.
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.

§ Lord Skelmersdale
My Lords, I, too, am extremely grateful to the Minister. I thought at one moment that he was going to break out into his old method of speaking and describe my amendments—or even his own Amendment No. 8—as unnecessary. However, he resisted that temptation and I am sure that the House is grateful. I repeat my gratitude to the Minister and his department. I shall not move Amendment No. 7, and I beg leave to withdraw Amendment No. 6.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 7 not moved.]

§ Lord Sainsbury of Turville moved Amendment No. 8: Page 35, line 7, leave out paragraph (c) and insert— ("(c) shall establish at least one committee, and may establish other committees, in relation to England (whether a committee for England or a committee for an area within England).").

§ On Question, amendment agreed to.

§ Baroness Miller of Hendon moved Amendment No. 9: After Clause 67, insert the following new clause—

cc174-96

NOTIFIABLE TRANSACTIONS 10,809 words, 1 division

cc196-218

Insolvency Bill [H.L.] 11,104 words

c218

Terrorism Bill 17 words