House of Lords - Explanatory Note
Postal Services Bill - continued          House of Lords

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Clause 77: Publicity requirements for certain accounts and reports of the Post Office company

115. Clause 77 requires the Post Office company to send to the Secretary of State:

(a) a copy of all annual accounts on which the company's auditors have made a report under section 235 of the Companies Act 1985, and

(b) a copy of the auditor's report

as soon as is practicable after the report is made. The Post Office company must also send to the Secretary of State a copy of its directors' report made in respect of each financial year under section 234 of the Companies Act 1985 as soon as is practicable after the report has been approved and signed. When he receives them the Secretary of State is required to lay a copy of the accounts and reports before both Houses of Parliament. In this clause, "annual accounts" means annual accounts within the meaning of Part VII of the Companies Act 1985 which relate to any year which includes the appointed day or to any subsequent year.

Clause 78: Information requirements on the Post Office company

116. Clause 78 empowers the Treasury to require the Post Office company to provide information (for example, forecasts of its capital expenditure and profits) for the performance of its functions in relation to public sector finance. The Treasury may apply to the court for any default under clause 78 to be made good.

Clause 79: Exercise of functions through nominees

117. Clause 79 empowers the Treasury, or the Secretary of State with the Treasury's consent, to appoint a person to act as their nominee for the purposes of clause 63 (Government holding in the Post Office company and its subsidiaries), clause 64 (Government investment in securities of the Post Office company) and clause 74(3) and (4) (Further provisions relating to the capital structure of the Post Office company). Any nominees shall hold and deal with the securities or debt securities on such terms and manner as directed by the Treasury, or with the consent of the Treasury, the Secretary of State.

Clause 80: Shadow directors

118. Clause 80 exempts the Secretary of State and the Treasury from certain administrative duties which would be imposed on them under the Companies Acts in respect of the Post Office company, in the event that either of them fell within the definition of "shadow director". A shadow director is defined by section 741(2) of the Companies Act 1985 as "a person in accordance with whose directions or instructions the directors of a Company are accustomed to act;". As detailed in the White Paper, the Government aims to reserve to itself controls over certain functions of the Post Office company, but the formulation of strategy and the running of the company will be the responsibility of the board of directors.

119. This clause does not remove any of the substantive obligations and duties falling on a shadow director. The Secretary of State or the Treasury would still bear the same substantive responsibilities and liabilities as any other director of the Post Office company in so far as those responsibilities would require the Secretary of State or the Treasury to behave with due care and diligence towards the company. But, in the event that the Secretary of State or the Treasury was a shadow director, no useful purpose is served by obliging them to comply with the provisions specified which are of an administrative nature, such as section 288 which imposes obligations on a company to keep particulars of its directors (name, address and occupation) and to notify the registrar of any changes.

Clause 81: Tax

120. Clause 81 gives effect to the provisions in Schedule 4, which sets out the tax provisions in relation to the transfer of property, rights and liabilities from the Post Office to the Post Office company.

Part V Offences in Relation to Postal Services

Clause 83: Interfering with the mail: postal operators

121. Clause 83(1) provides for it to be an offence for a person engaged in the business of a postal operator to delay or open postal packets without reasonable excuse. It amalgamates the content of offences previously included in the Post Office Act 1953.

Clause 84: Interfering with the mail: general

122. Clause 84(1) provides for it to be an offence if persons intentionally delay or open postal packets without reasonable excuse. It amalgamates the content of offences previously included in the Post Office Act 1953.

123. Subsection (2) makes it an offence for a person, intending to act to a person's detriment and without reasonable excuse, to open a postal packet which he knows or suspects has been incorrectly delivered to him.

Clause 85: Prohibition on sending certain articles by post

124. Clause 85 sets out criminal offences of sending postal packets by post which either contain:

  • articles, creatures or anything likely to injure other postal packets in the course of transmission by post or postal workers. This does not apply where the postal operator has given general or specific permission for anything to be enclosed in a postal packet; or

  • indecent or obscene material. It is also an offence if such material is on the packet or cover of the packet.

The offences apply to postal packets handled by any postal operator. The clause replaces section 11 of the Post Office Act 1953.

Clause 86: Prohibition on affixing advertisements on certain letter boxes, etc.

125. Clause 86 contains criminal offences in relation to the fixing of advertisements, documents, boards or things onto post offices, post boxes or other property belonging to, or used by universal service providers in connection with the provision of a universal postal service, and other damage or disfigurement to such property. This clause replaces section 61 of the Post Office Act 1953.

Clause 87: Prohibition on misleading descriptions

126. Clause 87 contains criminal offences intended to prohibit a person unless he has the authority of the universal service provider concerned:

  • maintaining a post box or post office and placing on them marks, words or letters with the purpose of deceiving members of the public into believing that a post box or post office is operated by a universal service provider;
  • using words, letters or marks which signify or imply that a ship, vehicle, aircraft or premises are used by a universal service provider to collect or convey postal packets in connection with the provision of a universal postal service; or

  • using words, letters or marks which imply that that person is authorised by a universal service provider to collect or convey packets in connection with the provision of a universal postal service.

A person also commits an offence by failing, without reasonable excuse, to comply with a notice given to him by the universal service provider to remove the words etc, or remove/close up the post box. This clause replaces section 64 of the Post Office Act 1953.

Clause 88: Obstruction of business of universal service providers

127. Clause 88 sets out criminal offences in relation to:

  • the obstruction, without reasonable excuse, of persons engaged in the business of a universal service provider in execution of their duty in connection with the provision of a universal postal service;
  • the obstruction, without reasonable excuse, of the business of a universal service providers' post office; and

  • failing, without reasonable excuse, to leave a universal service provider's post office when asked to do so by a person engaged in the business of a universal postal service provider on the basis that they suspect the person is obstructing their business.

It also enables the police to remove from the premises a person obstructing a post office's business. This clause replaces section 65 of the Post Office Act 1953.

Part VI Universal Postal Service: Supplementary

Clauses 89, 90, 91 and 92: Schemes and limitation of liability

128. Clauses 89, 90, 91 and 92 concern the legal relationship between a universal service provider and its customers. They replace sections 28 to 30 of the Post Office Act 1969 which dealt only with the relationship between the Post Office and its customers. The new provisions provide for the same privileges to apply to a universal service provider if a condition of his licence is that he should provide a universal postal service.

129. These clauses enable a universal service provider to make and operate schemes setting out terms and conditions for the provision of postal services (in place of contracts), which limit liability, in particular the liability for consequential losses. The purpose of having such schemes is to ensure that the universal service will continue to be provided. Where a universal service is provided through the use of post boxes (as is the case at present) there is no proof of posting or of the value of contents. The removal of immunity could result in universal service providers being forced to require proof of posting to determine eligibility for any compensation for service failure. These provisions provide for all universal service providers to have immunity to avoid this.

Clause 93: Power to modify sections 89 to 92

130. Clause 93 creates a power for the Secretary of State to modify clauses 89 to 92 by order having first consulted the Commission, the Council, licence holders and any such persons as the Secretary of State considers appropriate. It is intended that the need for and scope of the provisions in clauses 89 to 92 should be reviewed to ensure that they continue to be in the best interests of users of postal services. The purpose of this power is to ensure that the conclusions of any such review could be implemented without unnecessary delay.

Clause 94: Provision relating to land

131. Clause 94 gives effect to the provisions of Schedules 5 and 6, which relate, respectively to the compulsory acquisition of land by universal service providers and other provisions relating to land.

Clause 95: Inviolability of mail

132. Clause 95(1) and (2) provide for mail-bags, packets in the post and their contents to be immune from examination, seizure or detention, as if they were the property of the Crown.

133. Subsection (3) provides for exceptions to the above immunities where the Commission is investigating an offence of delivery of letters without a licence or where Customs and Excise is to exercise its powers.

134. Subsections (4) and (5) provide protection for persons engaged in the business of universal service providers against prosecution for possession of articles in the post where such articles are prohibited under any enactment or fail to comply with restrictions under any enactment on carriage or delivery.

Clause 96: Harbour charges on mail-bags

135. Clause 96(1) and (2) protect the goods in the mail-bags of universal service providers and foreign postal administrations from harbour charges in respect of those goods.

136. Subsection (3) protects the mail-bags of universal service providers and foreign postal administrations from being detained by a harbour authority for non-payment of charges for a period of eight weeks so that they cannot be held up by a demand for immediate payment. This replaces section 66 of the Post Office Act 1969.

Clause 97: Mail-bags not to be subject to control by harbour authorities

137. Clause 97 sets out four cases in which harbour authorities may not detain mail-bags. It overrides any other statutory provisions. This replaces section 67 of the Post Office Act 1969 extending the protection to mail-bags of all universal service providers.

138. The cases are:-

  • where a universal service provider is carrying the mail-bags himself in connection with the provision of a universal postal service;

  • where another is carrying the mail-bags of a universal service provider on his behalf either within the UK or to a foreign destination;

  • where mail-bags of a foreign administration are being carried by a universal service provider: and

  • where a universal service provider is in charge of the mail-bags of foreign administrations in the United Kingdom in connection with the provision of a universal postal service.

Clause 98: Common carriers

139. Clause 98 states that universal service providers (so far as they are providing a universal postal service) are not "common carriers". According to the Common Law, a "common carrier" is bound to accept goods that are offered to him for carriage, but he may refuse to do so if he believes that he has lawful ground for such refusal. Without this exemption universal service providers might be regarded as common carriers, which could make them absolutely responsible for the safety of goods entrusted to them for carriage. This would mean that they could be liable in certain circumstances if the goods they carry are lost or damaged, even without fault on their part.

Clause 99: Certain exemptions from postage etc.

140. Clause 99 provides for the exemption from postal charges for certain petitions and addresses forwarded or sent to Her Majesty, or to the Secretary of State for Northern Ireland, or sent to a member of either House of Parliament, the Scottish Parliament (or its Clerk), the Northern Ireland Assembly or of the Welsh Assembly. It also limits the amount of postage that the universal service provider may recover for the delivery of parliamentary proceedings.

Part VII Miscellaneous and Supplementary

Clause 100: Directions in interests of national security etc.

141. Clause 100 provides a power to the Secretary of State to direct the Commission or a licence holder as he considers appropriate if he considers it expedient to do so either in the interest of national security or in order to discharge an international obligation; to meet the object of an international organisation of which the Government is a member or agreement to which they are party; or to enable the Government to become a member of such an organisation or party to such an agreement. The Directions should generally be laid before Parliament but there are exceptions to this on specified grounds. It is an offence to contravene a direction or, in certain circumstances, to disclose it.

Clause 101: Power to ensure compliance with the Postal Services Directive

142. Clause 101 provides a power for the Secretary of State to ensure compliance with the EU Postal Services Directive. The purpose of this power is to ensure that the Government's obligations are always met, in particular in the event that the reserved area is removed and with it the ability to impose the universal service obligation and related requirements through licence conditions.

143. The power only applies where the Secretary of State is satisfied that a Community obligation under the Postal Services Directive is not being met or will not be met and where he has been unable to obtain any undertakings from any person which are sufficient to satisfy him that the situation will be remedied. In that case the Secretary of State may make by order such provision as he considers appropriate to ensure that a universal service is provided.

144. An order under this clause may in particular: confer or modify the functions of the Commission or the Council; require a postal operator to provide all or part of a universal postal service; specify terms and conditions for such services; provide for payment from public funds for any purpose of the order; and for the enforcement of provisions in the order.

145. In deciding whether to make any such order the Secretary of State will have regard to the likely impact of the order on the person on whom the requirement is to be imposed. And that before making such an order he will consult with any such person.

Clause 102: Subsidy for public post offices

146. This clause will allow the Secretary of State to make a scheme for payments for the purpose of assisting in the provision of public post offices or assisting in the provision of services to be provided from public post offices. Where the payments are made for services, they must ultimately assist in the provision of public post offices.

147. The Secretary of State must set the terms of the scheme, but may specify another person to make the payments. If that person is a statutory body or an office holder the Secretary of State has power to alter their statutory functions to allow them to undertake functions under any scheme set up under this clause.

Clause 103: Application of Customs and Excise enactments to certain postal packets

148. Clause 103 applies customs legislation to postal packets. It re-enacts and updates the provisions contained in section 16 of the 1953 Post Office Act.

149. Subsection (1) applies customs and excise legislation to postal packets that are being imported, exported or in transit through the UK from or to any place outside the UK.

150. Subsection (2) provides a power, similar to the one in the 1953 Act, for HM Treasury to make regulations specifying how the legislation should apply. The power allows HM Treasury to make regulations:

  • specifying which postal packets the clause applies to;

  • making any exceptions or modifications in how those acts apply;

  • enabling a postal operator to perform the duties of the importer, exporter or remover;

  • giving effect to arrangements for foreign postal packets;

  • securing observance of the acts; and

  • punishing contravention of the regulations.

151. Subsection (3) allows duties and charges applied through this clause to be recovered by the postal operator concerned and subsection (4) allows for a certificate from the relevant postal operator to be evidence in proceedings for that recovery.

152. Subsection (5) defines the term "foreign postal packet" used in this clause.

Clause 104: Power to detain postal packets containing contraband

153. Clause 104 permits postal operators to forward postal packets to the Commissioners of Customs and Excise. It re-enacts and updates the provisions contained in section 17 of the 1953 Post Office Act.

154. Subsections (1) and (2) allow postal operators to detain and forward to the Commissioners of Customs and Excise, any postal packet that they suspect contains goods which are subject to duty which has not been paid, or which are subject to legislation prohibiting or restricting their import or export.

155. Subsection (4) and (5) allow the Commissioners to open any postal packet that is forwarded to them under this clause, in the presence of the addressee, or - if the addressee has been notified but fails to turn up or the address is overseas - in the addressee's absence.

156. Subsection (6) permits that if the Commissioners find any goods that are prohibited or on which duty has not been paid they may take proceedings in relation to them. Subsection (7) specifies that if, upon opening, the Commissioners do not find any such goods they must forward or deliver the package to the addressee.

Clause 105: Conditions of transit of postal packets

157. Clause 105 permits a postal operator in certain circumstances to refuse transmission of a postal packet, detain and open it, make additional charges, return to its sender or forward it to its destination.

Clauses 106/107/108: Evidential provisions

158. Clauses 106, 107 and 108 are intended to prevent delays in court cases arising from hearsay arguments.

159. Clause 106 enables official marks of universal service providers in connection with the provision of the universal service (in the United Kingdom and overseas) to be sufficient proof of the amount of postage due on a postal packet. It allows in legal proceedings for the recovery of postage or other sums due in respect of postal packets that the production of the packet with a universal service providers' or a foreign administrations' stamp or endorsement on it is sufficient proof that the packet has been refused or rejected, is unclaimed or cannot be delivered for any other reason. It also states that a certificate of a universal service provider is sufficient proof that any mark, stamp or endorsement has been made by that universal service provider unless the contrary is shown. The clause makes it clear that, in any legal proceedings, the person from whom a postal packet seems to have come will, unless the contrary is shown, be taken to be the sender of the packet.

160. Clause 107 enables, on prosecution of an offence under the Bill, evidence that an article in the course of transmission by post or has been accepted by a postal operator for transmission by post will be sufficient proof that it is a postal packet. This applies to any offence set out in the Bill. Subsections (2) and (3) clarify the relationship between proceedings under the interfering offences set out in clauses 83 and 84 and the Theft Act 1968 which applies to England and Wales and the Theft Act (Northern Ireland) 1969. In proceedings where theft is involved in the course of transmission of a postal packet, the relevant sections of the Theft Act shall apply.

161. Clause 108 enables certification by a universal service provider to be sufficient proof, unless the contrary is shown, that any box or receptacle was provided by the provider for receiving and onward transmission of postal packets in connection with the provision of a universal postal service.

162. These clauses replace sections 19, 72 and 78 of the Post Office Act 1953.

Clause 109: Extension of existing powers relating to the Post Office

163. Clause 109 extends certain existing powers of the Post Office (the statutory corporation) and the Crown under the Post Office Act 1969 and the British Telecommunications Act 1981 prior to the Post Office becoming a company. The purpose is to support the Government's policy of allowing the Post Office greater commercial freedom. The clause provides:

  • for the Post Office to enter into any financial transactions not already empowered by section 7 of the Post Office Act 1969 and the power will include, for example, power to enter into currency swaps required in connection with the business of the Post Office and its expansion outside the United Kingdom

  • for the Secretary of State, with the approval of the Treasury, also to make loans direct to any subsidiaries of the Post Office, and not only to the Post Office itself

  • for the Secretary of State, with the approval of the Treasury, to make loans in foreign currencies to the Post Office or its subsidiaries. The monies will continue to be issued from the National Loans Fund, but may be issued in sterling or a foreign currency if the loan is to be in that currency

  • for the Post Office correspondingly to have powers to borrow in a foreign currency from the Secretary of State

  • for the limit on the Post Office's total indebtedness, as permitted under the British Telecommunications Act 1981 and including borrowing by any subsidiary, to be increased from £1,200 million to £5,000 million and for the removal of the ceiling up to which the limit may be increased, although any increase will still need to be authorised by an affirmative resolution order.

Clause 110: The Postcode Address File

164. Clause 110 requires the owner (currently the Post Office) of the database of United Kingdom postcodes (known as the Postcode Address File; PAF) to make it available to those who wish to use it, on reasonable terms and on possible payment of a charge. It also requires the owner to maintain it.

Clause 111: General restrictions on disclosure of information

165. Clause 111 provides that the provisions of Schedule 7, which makes provision about disclosure of information, shall have effect.

Clause 112: Offences by body corporate

166. Clause 112 allows the directors, managers or other officers of a body corporate, to be subject to prosecution if a corporate body is found guilty of an offence under the Bill, and it is proved that the offence has been committed with their consent, connivance or neglect.

Clause 113: Service of documents

167. Clause 113 provides for the ways in which documents may be served on persons, bodies corporate and partnerships.

Clause 114: Orders and regulations

168. Clause 114 sets out how the Secretary of State is to exercise his powers to make orders or regulations under the Bill, and make additional provisions in respect to his powers. It also sets out how the Treasury can exercise their power to make regulations under the Bill.

Clause 115: Directions

169. Clause 115 requires a person to whom a direction is given to give effect to it. It further provides that any power conferred by this Bill to give a direction includes the power to vary or revoke any such direction. Finally it provides that such directions should be in writing.

Clauses 116, 117, 118, 119, 120, 121, 122 and 123 General and financial provisions

170. Clause 116 summarises the financial provisions for the Bill.

171. Clause 119 introduces the amendment and repeals and revocations Schedules. Subsection (1) confers the power to make further modifications by order of enactments, instruments and other documents in consequence of the Bill.

172. Clause 120 confers a similar power to clause 119(1), but in relation to local enactments.

173. Clause 122 provides that most of the provisions of the Bill will be brought into force by commencement orders made by the Secretary of State. Subsection (2) permits different commencement dates for different clauses. Some provisions come into force on Royal Assent, and clause 109 (extending certain existing powers of the Post Office) comes into force two months after Royal Assent.

174. The Bill is to apply throughout the United Kingdom.

SCHEDULE 1

The Postal Services Commission

175. Schedule 1 sets out a series of detailed provisions regarding the membership and constitution of the Commission, staffing and supplementary powers.

176. Paragraph 1 provides that the Commission shall consist of a chairman and no fewer than three other members, each appointed to the Commission by the Secretary of State, and the chief executive.

177. Paragraph 2 gives a power to the Secretary of State to determine the terms of appointment of members of the Commission and requires appointed members to hold and vacate office in accordance with such terms.

178. Paragraph 3 provides that any appointment shall be for a period of not more than five years; but that previous membership does not preclude a further term.

179. It also provides that a member may resign, and that the Secretary of State may remove a member on grounds of incapacity or misbehaviour.

180. Paragraph 4 makes provision for the Commission to pay and remunerate its members. It also makes provision for the Secretary of State to authorise the Commission to pay compensation where a person ceases to be a member where in his view there are special circumstances.

181. Paragraph 5 provides the Commission with the duty to appoint a chief executive, and power to appoint other staff, on such terms and conditions of service as the Minister for the Civil Service may approve.

182. Paragraph 6 provides the Commission with a power to establish committees and sub-committees; and that these may include persons other than members of the Commission.

183. Paragraph 7 provides for the Commission to regulate its own proceedings, including quorum.

184. Paragraph 8 provides for the authentication of the Commission's common seal.

185. Paragraph 9 provides for a document executed under the seal to be received in evidence.

186. Paragraph 10 sets out the power of the Commission to delegate to any member, member of staff or any committee who is authorised by the Commission for that purpose.

187. Paragraph 11 provides supplementary powers for the Commission. It provides that the Commission has a power to do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the performance of any of its functions, in particular the formation of advisory bodies.

 
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Prepared: 20 April 2000