Select Committee on Delegated Powers and Deregulation Twenty-Third Report


ANNEX 1

POSTAL SERVICES BILL

Second supplementary Memorandum by the Department of Trade and Industry

INTRODUCTION

The Department's memorandum of 2 May 2000 and its supplementary memorandum of 6 June described the delegated powers contained in the Postal Services Bill together with the Parliamentary control procedures envisaged. The Select Committee's Seventeenth Report (24 May 2000) made no recommendation to alter either the delegated powers or the Parliamentary control procedures for the powers described in the main memorandum, and the Committee's Nineteenth Report (8 June) recorded that the Committee had considered the amendments described in the first supplementary memorandum and saw no need to comment on any of them.

Since that report, the Government has laid a further six further sets of amendments, for consideration on Report, which introduce further delegated powers or modify the way in which powers already contained in the Bill (and described in the previous memoranda) may be exercised. (A copy of the texts is attached for ease of reference - Not Printed). These powers, and the modifications, are contained in


-A new clause (to be inserted after Clause 117) - Supplementary provisions relating to the Council
-Amendments to clause 121 - Orders and regulations
-Amendments to clause 126 - General amendments and repeals
-Amendments to clause 127 - Modifications of local enactments etc
-Amendments to clause 129 - Commencement
-A new sub-paragraph (1(4A)) to be inserted into Schedule 3 - Transfer to the Post Office company: Supplementary provisions
-A new Part 1 to be inserted into Schedule 8 - Amendments of enactments
This supplementary memorandum
-describes the purpose and proposed use of these additional powers,
-explains why these matters have been dealt with by creating delegated powers, and
-   explains the degree of Parliamentary control on the exercise of these powers.



DELEGATED POWERS IN NEW CLAUSE TO BE INSERTED AFTER CLAUSE 117 AND THE REASONS FOR THEM

The new clause to be inserted after Clause 117 includes a provision in subsection (1) enabling the Secretary of State by order to appoint a day on which all the property, rights and liabilities of the existing Post Office Users' National Council are transferred to the new Consumer Council for Postal Services. This is a standard provision and similar to that found in clause 62 in relation to the transfer of the Post Office to the Post Office company. It is not thought by the Department to raise any particular issues regarding the potential for improper use of delegated powers. It is not subject to any Parliamentary procedure.

DELEGATED POWERS IN CLAUSE 121 AND THE REASONS FOR THEM

There are a number of proposed amendments to clause 121, which deals with the powers to make orders and regulations.

The first, at line 6 on page 71, adds the general power to make provisions for different cases or descriptions of case as well as for different purposes, when exercising the powers under the Bill to make regulations or orders. This flexibility is needed as a safeguard when modifying the many pieces of legislation etc which deal with the Post Office and related terms (described more fully below). Much of this legislation stretches back many years. Some, as yet unidentified (but anticipated) provisions may require such special treatment. The amendment provides the flexibility to be able to deal properly with such circumstances.

The second at line 15 on page 71 adds a new subsection to clause 121 providing that the powers under paragraph A6(1) of Schedule 8 (including that power as extended by clause 121) may be exercised by modifying an enactment. Paragraph A6(1) is the paragraph which will give the Secretary of State the power to disapply or apply with modifications any of the "general glosses" on interpretation of standard postal terms contained in legislation. The Bill creates a new postal regime. There are a considerable number of references to general postal terms in legislation (e.g. "by post", "registered post" "first class post"). The new General Amendment provisions of Schedule 8 are meant to deal with these generic terms and provide standard definitions, but there may be instances where this approach will simply not work and a different consequential provision will need to be made. The amendment to clause 121 spells out that if a different provision needs to be made under that provision it may modify an enactment. The amendment at line 26 provides that this power, when used in conjunction with that contained in Paragraph A6(1), is subject to the affirmative procedure.

The third amendment, at line 20 of page 71, extends the powers under clauses 102, 103, 126(1) and 127 as extended by clause 121 to make provision for the delegation of functions. This may seem a wide power, but is narrowed by its context. It is considered necessary so that proper provision can be made in the consequential amendments orders to be made under clauses 126(1) and 127 of the Bill. An example of a provision which includes sub-delegation is paragraph 93 of Schedule 4 of the Post Office Act 1969 which defines operational land. It is also considered that if provision is made under clauses 102 and 103 (i.e. ensuring compliance with European Union Directives and schemes providing financial assistance to public post offices) there may be occasions where the use of this power may prove necessary. The provision is limited to the exercise of the powers under the specified clauses, and in respect of its use in conjunction with the powers under clauses 126(1) and 127 is in particular limited by the general restriction that the powers are to be exercised to make the necessary amendments which flow from the changes introduced by the Bill.

The fourth amendment, also at the end of line 20 of page 71, is declaratory and makes clear that any power conferred on the Secretary of State by this Bill is without prejudice to the extent of other powers conferred by the Bill.

The fifth, at line 23 of page 71, provides for powers which would normally be subject to the negative resolution procedure to be used in conjunction with powers subject to the affirmative procedure, provided the affirmative procedure is followed. The Department considers that this adds essential flexibility into the powers and permits provisions which are associated with each other to be contained in one instrument, despite that fact that they would otherwise be subject to different Parliamentary procedures.

The sixth amendment, at line 25 of page 71, provides that the new power contained in Paragraph 1(4A) of Schedule 3, including that paragraph as extended by the proposed new clause (Supplementary provisions relating to the Council), is subject to the negative procedure.

The amendment at line 26 of page 71 is a further clarificatory provision. Its purpose is to make clear that provisions in orders made under any of the provisions contained in subsection (7) which revoke, amend or re-enact provisions in orders which have previously been made under any of those provisions may be subject to a different procedure from that which the order they revoke, amend or re-enact, originally followed. This is to provide the flexibility referred to above. If an order contains provisions made under any of the powers mention in subsection (7), those provisions may be amended either by an order following the negative procedure or an order following the affirmative procedure (where the powers are being exercised in conjunction with affirmative powers) irrespective of whether the original provision was made by an order following the negative or the affirmative procedure. The amendment at line 29 of page 71 is also clarificatory, making clear that the provisions of clause 121 may extend not only to "enactments" but also to any instrument or other document.

DELEGATED POWERS IN CLAUSE 126 AND THE REASONS FOR THEM

Clause 126 already contains an order making power to enable the Secretary of State to modify any enactment, instrument or other document as appears necessary or expedient in consequence of this Act. It is intended that this power will be used to modify some 1,600 references to the Post Office and related terms in legislation (which are not dealt with adequately by the general glosses in Part 1 of Schedule 8). These modifications will not always be uniform and many need to be considered carefully in the context of the whole of the Bill. For example amending "Post Office" not just to "Post Office company" but possibly "universal service provider" or "any postal operator". That said, where it is possible to make "class" provisions, such as for the terms "by post", registered post" etc, these will be made. However, while every effort has been made to identify all of the type of changes that may be necessary under the power in clause 126, it is anticipated that some references or provisions will be discovered (as the work on the order develops) where it will be necessary to make supplemental and incidental provision rather than simply substitute one reference for another in existing legislation.

Following further consideration, it was thought that the existing power was not sufficient in such circumstances and that it was appropriate for it to be amended to enable the Secretary of State to make supplementary and incidental, as well as consequential provision. The amended clause makes clear that such provisions may only be made where necessary and expedient for the general purposes, or any particular purpose, of the Bill and in consequence of any provision made by or under the Bill or to give full effect to the Bill or any such provision.

Orders under this clause will remain subject to affirmative procedures.

DELEGATED POWERS IN CLAUSE 127 AND THE REASONS FOR THEM

The amendment to clause 127 inserts the same amendment proposed for clause 126. This clause, however, applies to local enactments. Orders under this clause will remain subject to negative procedures.

DELEGATED POWERS IN CLAUSE 129 AND THE REASONS FOR THEM

Clause 129 provides that most of the provisions of the Bill will be brought into force by commencement orders made by the Secretary of State. Different days may be appointed for different purposes and, with the new Government amendment tabled for Report, for different areas. This is to enable the Secretary of State to commence repeals for Jersey and Guernsey and the Isle of Man at different times from repeals in the United Kingdom. This is useful where, for example, there needs to be delay in the United Kingdom for some reason, such as the transfer of the Post Office to the new company, but there is no need for a delay in the Channel Islands and the Isle of Man, or vice versa. It would also allow commencement of all the repeals relating to the Channel Islands and the Isle of Man at the same time, if this is more convenient. The powers in clause 129 are not subject to any Parliamentary procedure.

DELEGATED POWERS IN SCHEDULE 3 AND THE REASONS FOR THEM

The new subparagraph to be inserted in paragraph 1 of Schedule 3 contains an order making power which allows the Secretary of State to disapply, or apply with modifications, the provisions in subsections (1)-(4) of that paragraph.

Schedule 3 sets out a series of supplementary provisions regarding the vesting of property, rights and liabilities of the Post Office in the Post Office company. The purpose of Schedule 3 is to ensure that the transition of the Post Office from statutory corporation to public limited company is seamless, that it does not disadvantage either the Post Office company or any third parties, that appropriate provision is made in relation to pension arrangements, and that any foreign property, rights and liabilities are transferred with effective legal force.

Paragraph 1 has the effect that anything done by or in relation to the Post Office is deemed to have been done by or in relation to the Post Office company. This includes legal proceedings and references in any agreement or document.

The order making power is considered appropriate in the event that there are instances where, for example, the reference to the Post Office in a document should be to a person or persons other than the Post Office company alone. Specific arrangements would need to made in such instances.

The power is extended by the subsection (3) of the new clause (Supplementary provisions relating to the Council) to transitional provisions for the Council, and in both cases the amendment to clause 121, at line 25 on page 71 provides that the power is subject to the negative resolution procedure.

DELEGATED POWERS IN SCHEDULE 8 AND THE REASONS FOR THEM

Paragraph (A6) inserts into the Bill an order making power to disapply or apply with modifications the provisions of paragraphs A1 to A5 which define how the expressions "by post", "registered post", "recorded delivery" and "first class post" in existing and future enactments are to be construed once the Bill becomes law.

The inclusion of these provisions in the Bill should significantly reduce the number of consequential amendments that would otherwise need to be made.

There may be occasions where it would be inappropriate for the glosses in paragraphs A1 to A5 to apply. It is considered appropriate that the Secretary of State should have the power to disapply these provisions, or to apply them with modifications. If he disapplies them in a particular instance he may use his powers to make the appropriate consequential amendment in the legislation etc affected.

The amendment to clause 121 - at line 26 of page 71, provides that orders under this provision are subject to the negative resolution procedure.

27 June 2000


 
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