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Lord Sainsbury of Turville moved Amendment No. 86:



("( ) Section 114(1) does not apply to an order of the Secretary of State under this paragraph.").

The noble Lord said: The purpose of Amendment No. 86 is to make it clear that the vesting order of the Secretary of State referred to in paragraph 3 of Schedule 5 is not a statutory instrument. Without this amendment the order would be caught by Clause 114(1) of the Bill which states that order-making powers in the Bill are exercisable by statutory instrument.

Amendment No. 87 is a minor drafting amendment that deletes paragraph 20 of Schedule 5 to the Bill. This paragraph was intended to modify paragraph 12 of Part III of the First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland Act) 1947 which sets out the requirement for special parliamentary procedure, and other special provisions, in the case of acquisition of certain descriptions of land.

We understand that paragraph 12 was repealed by the Ancient Monuments and Archaeological Areas Act 1979 and therefore the modification in paragraph 20 of Schedule 5 is superfluous. I beg to move.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Schedule 6 agreed to.

Clause 95 [Inviolability of mails]:

Lord Sainsbury of Turville moved Amendment No. 88:


    Page 55, line 31, leave out subsections (1) to (3).

On Question, amendment agreed to.

Clause 95, as amended, agreed to.

Clauses 96 to 99 agreed to.

Clause 100 [Directions in interests of national security etc.]:

Lord Sainsbury of Turville moved Amendment No. 89:


    Page 59, line 21, leave out subsection (2) and insert—


("(2) Directions under subsection (1) may, in particular, require the Commission—
(a) to do or not to do a particular thing, or
(b) to secure that a particular thing is done or not done.").

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The noble Lord said: I beg to move Amendment No. 89 and in doing so I should like to speak to Amendment No. 90. These are technical amendments. Amendment No. 89 brings subsection (2) in line with subsection (4). This amendment clarifies the width of the power at subsection (2) and ensures consistency.

Amendment No. 90 amends Clause 100(6). It clarifies the fact that the references in subsection (6) to a particular licence holder do not include a reference to a description of licence holders.

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendment No. 90:


    Page 59, line 36, after ("generally") insert ("or any description of licence holders)").

On Question, amendment agreed to.

Clause 100, as amended, agreed to.

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

Baroness Miller of Hendon moved Amendment No. 91:


    Page 60, line 29, leave out ("may") and insert ("shall").

The noble Baroness said: I should like to speak to Amendments Nos. 91 and 92 together. Clause 101 gives the Secretary of State the power to ensure compliance with the Postal Services Directive of the EU. The directive is another interference with what should be an entirely domestic matter: namely, an independent state's postal service.

International postal services have, almost since the invention of the postage stamp, been controlled by international agreements between individual post offices forming the Universal Postal Union, an organisation whose existence in Britain has been promoted several times by the issue of commemorative stamps dedicated to it. However, we now have to live with the directive. This group of amendments is designed to ensure compliance with our obligations under the directive.

Amendment No. 91 alters "may" to "shall", and this is to remove a sort of double-whammy in subsection (2). This refers to provisions that the Secretary of State,


    "considers appropriate to ensure that the obligation under the directive is or will be complied with".

Once the Secretary of State has made the decision that the directive is not being complied with, clearly he is under a duty to ensure that it is. That is why we say that he "shall", not "may", make an order. If he does not want to make an order then he should not make the decision in the first place that the directive is not being complied with or that a particular course of action is appropriate to remedy a breach.

Amendment No. 92 is designed to correct a piece of overkill in the Bill. As provided at present, an order made under subsection (2) by the Secretary of State applies to,


    "any postal operator or operators".

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I repeat, "any postal operator", and not merely one working within the licensed area. A postal operator is rather unhelpfully defined in Clause 117(1) as,


    "a person who provides postal services".

So what are postal services? The same subsection means,


    "the conveying of postal packets from one place to another by post",

and the incidental services of receiving and delivering such packets. To complete the circle, a postal packet means a letter, parcel, packet or other article that is transmissible by post.

The ability to provide postal services is not limited to those licensed under Clause 6. Under Clause 7 there are exceptions: 18 of them, including the two all-important ones where the cost or the weight is outside the limits provided for in Clause 7(1). The other 16 are of varying importance or relevance to this amendment. Clearly, personal delivery by the sender is not a postal service. However, some of the 16, and certainly those not requiring a licence because they are outside the price or weight limits, are nevertheless postal services.

With that long preamble, I should like to explain that our object is to ensure that the Secretary of State cannot make orders which are outside the licensed area, even if the unlicensed person is legitimately running what is a postal service within the convoluted and circumlocutory definition contained in this Bill. I believe that this is an intrusion and an attempt by the state to control businesses which, by definition, are falling outside this Bill. The amendment restricts the power to make an order simply to universal service providers. I beg to move.

5.15 p.m.

Lord Sainsbury of Turville: 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 can always meet their obligations 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 licensed conditions.

It is, as I hope is well understood, an emergency power and not a power on which the provision of a universal postal service is intended to rely. The Government place an enormous weight on the value of the universal service obligation. It is the primary duty of the commission to ensure that it is delivered as set out in Clause 3. The intention is that it will do so through the licensing regime, in particular by imposing as a condition of licence on one or more operators a requirement to provide a universal service or part of such a service. It is also intended that the requirements on universal service providers, such as quality of service standards, regulatory accounts, complaints and compensation schemes, will all be imposed and enforced through the licensing regime; and the Bill is built on this foundation.

One reason why Clause 101 contains a power and not a duty to make an order is that the power can either be used in conjunction with the licensing scheme or

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when it has been suspended. If a licensing regime has been suspended there would be two options available to the Secretary of State to try to ensure that the community obligation is fulfilled. The first would be to use the Clause 101 power. The second would be to remove the suspension of the licensing regime.

Perhaps I could refer to that point again, because it is absolutely central to the argument. One of the reasons why Clause 101 contains a power and not a duty to make an order is that the power can either be used in conjunction with the licensing scheme or when it has been suspended. If the licensing regime has been suspended there are then two options available to the Secretary of State to try to ensure that the community obligation is fulfilled. The first would be to use the Clause 101 power; the second would be to remove the suspension of the licensing regime. The effect of this amendment would be that as soon as the conditions in Clause 101 were met the Secretary of State would be forced to use the Clause 101 power, without having the alternative option of seeing whether the removal of the suspension of the licensing regime would have the desired effect.

The effect of Amendment No. 92 would be to provide that an order requiring a postal operator to provide a specified postal service to ensure compliance with the postal services directive is limited in scope only to those operators who are already designated as universal service providers or, if not, are licensed postal operators. This would have the effect of fettering the discretion of the Secretary of State in respect of which postal operators might be required to provide such postal service as might be required by an order under Clause 101. It would not allow the Secretary of State to decide on the basis of the facts at the time which postal operator or operators should be required to provide the necessary postal services to ensure that the United Kingdom continues to meet its EU obligations and the public continue to benefit from a universal postal service.

Instead, the Secretary of State's discretion would be fettered by a decision taken now against a background and a market which are unlikely to be relevant in years to come.

Ideally, of course, the Government will never need to use these powers. If they were to be used, the expectation must be that a requirement under subsection (3)(b) for a postal operator to provide specified services will, if at all possible, be placed upon an existing universal service provider. But we cannot rule out entirely the possibility that there might be circumstances where the universal service provider cannot, for whatever reason, be relied upon to continue to provide the universal postal service—for example, through insolvency—and where the Government would have to look elsewhere to ensure the provision of such services.

The proposed amendment would provide as an alternative a licensed special operator who is not also a universal service provider. But this alternative is flawed. It is possible that the order-making power under Clause 101 would be used after a licensed area

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has been suspended. With no licensed area, there would be no licensed operators on whom to place any requirement to provide postal services. Even if the powers were to be used while there was still a licensing regime in place, we cannot be certain either that there would be any licensees at the time, or that those who held licences—which might be for very small niches within the reserved area—were capable of delivering a universal postal service.

The amendment might work in the near future, where we have at least some idea of what this fast-changing market might look like. We cannot know whether it would work in 10 or more years' time, when the market and the players within it may have changed beyond recognition.

This amendment would unnecessarily restrict the scope of the order-making power, with the effect that, in some circumstances, the Government could no longer guarantee the universal postal service or that other obligations under the directive are met. This would be extremely unfortunate, given the huge value that everyone places on the universal postal service. We cannot afford to put that in jeopardy. In the light of that explanation, I hope that the noble Baroness will withdraw the amendments.


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