POSTAL SERVICES BILL
Second supplementary Memorandum by the
Department of Trade and Industry
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.
117 AND THE
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.
121 AND THE
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.
126 AND THE
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
127 AND THE
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
129 AND THE
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.
3 AND THE
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.
8 AND THE
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