Postal Services (Hansard, 14 June 2000)

§ Mr. Byers

The provisions in the Postal Services Bill provide for the enforcement of the reserved area by the Postal Services Commission. That it has a duty to do so is implicit in the Bill. The reserved area (in which it is an offence to operate without a licence) is there to protect the provision of the universal postal service. The primary duty of the Commission (as set out in clause 3) is to exercise its functions in the manner which it considers best calculated to ensure the provision of the universal postal service.

Since, under the European postal services directive, the reserved area can be only such as is necessary to ensure the provision of the universal service, infringement (unlicensed activity) of the reserved area (which is illegal) must be considered a potential threat to the provision of the universal service. This applies as much to relatively small infringements (which could cumulatively undermine the universal postal service) as it does to large infringements which have a significant effect in their own right. It follows, therefore, that there is an implied duty for the Commission to enforce the reserved area to protect the licensing regime and by doing so to protect the provision of a universal postal service.

The Bill makes it clear that, if the Commission considers that the scope of clause 7 of the Bill, and thus the activities requiring a licence, should be changed the mechanism for doing so is to recommend to the Secretary of State that he makes an Order modifying clause 7. It is 660W clear, therefore, that the Commission should not allow de facto reductions in the scope of the reserved area simply by allowing repeated infringements of it.

Both the intention and effect of the Bill is that the Commission will take whatever enforcement action it considers necessary to protect the reserved area by deterring, detecting and prosecuting or otherwise remedying unlicensed activity. Not to do so (without good reason) would be a breach of its duties.

In line with precedents in the utilities legislation (where it is also a criminal offence to operate without a licence) and the application of the criminal law in general, by not creating an express duty to take enforcement action in all circumstances, the Bill recognises that there should be an element of discretion in enforcement. So, while the presumption is that the Commission will usually take action to protect the licensed area where it knows or has good reason to believe an offence is being committed under clause 6 of the Bill, there may be circumstances where formal enforcement procedures, by prosecution or otherwise, are not in the public interest.