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Water Bill [HL]


Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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              (11)            A statutory instrument containing an order under subsection (6)

above shall not be made unless a draft of the instrument has been

laid before, and approved by a resolution of, each House of

Parliament.

              (12)            Where the Authority modifies the standard conditions of retail

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licences or combined licences, the Authority shall—

                    (a)                   also make (as nearly as may be) the same modifications of

those conditions for the purposes of their incorporation in

licences of that description granted after that time; and

                    (b)                   publish the modifications in such manner as it considers

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appropriate.

              (13)            In this section “relevant licence holder”, in relation to proposed

modifications of standard conditions of retail licences or combined

licences, means the holder of a licence of that description—

                    (a)                   which is to be modified under the proposals by the inclusion

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of any new standard condition; or

                    (b)                   which includes any standard conditions to which the

proposals relate, other than standard conditions which are

not in effect (by virtue of anything done under section 17H(4)

above) at the time specified in the notice under subsection (3)

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above.

       17K            Water supply licences: modification references to Competition

Commission

              (1)             The Authority may make to the Competition Commission (in this

section and the following provisions of this Chapter referred to as

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“the Commission”) a reference which is so framed as to require the

Commission to investigate and report on the questions—

                    (a)                   whether any matters which—

                           (i)                          relate to the carrying on of activities authorised or

regulated by a particular licence; and

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                           (ii)                         are specified in the reference,

                                          operate, or may be expected to operate, against the public

interest; and

                    (b)                   if so, whether the effects adverse to the public interest which

those matters have, or may be expected to have, could be

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remedied or prevented by modifications of the conditions of

the licence.

              (2)             The Authority may make to the Commission a reference which is so

framed as to require the Commission to investigate and report on the

questions—

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                    (a)                   whether any matters which—

                           (i)                          relate to the carrying on of activities authorised or

regulated by retail licences or combined licences; and

                           (ii)                         are specified in the reference,

                                          operate, or may be expected to operate, against the public

45

interest; and

                    (b)                   if so, whether the effects adverse to the public interest which

those matters have, or may be expected to have, could be

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                    (b)                   remedied or prevented by modifications of the standard

conditions of licences of that description.

              (3)             The Authority may, at any time, by notice given to the Commission

vary a reference under this section by—

                    (a)                   adding to the matters specified in the reference; or

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                    (b)                   excluding from the reference some of the matters so

specified,

                              and on receipt of any such notice the Commission shall give effect to

the variation.

              (4)             The Authority may specify in a reference under this section, or a

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variation of such a reference, for the purpose of assisting the

Commission in carrying out the investigation on the reference—

                    (a)                   any effects adverse to the public interest which, in its opinion,

the matters specified in the reference or variation have or

may be expected to have; and

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                    (b)                   any modifications of the relevant conditions by which, in its

opinion, those effects could be remedied or prevented.

              (5)             As soon as practicable after making a reference under this section or

a variation of such a reference, the Authority shall—

                    (a)                   publish particulars of the reference or variation in such

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manner as it considers appropriate for the purpose of

bringing the reference or variation to the attention of persons

likely to be affected by it; and

                    (b)                   serve a copy of the reference or variation on—

                           (i)                          the licence holder or, as the case may be, the relevant

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licence holders;

                           (ii)                         the Secretary of State;

                           (iii)                        the Assembly; and

                           (iv)                         the Chief Inspector of Drinking Water.

              (6)             If, before the end of the period of twenty-eight days beginning with

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the day on which the Secretary of State receives the copy of the

reference or variation, the Secretary of State directs the

Commission—

                    (a)                   not to proceed with the reference; or

                    (b)                   not to give effect to the variation,

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                              the Commission shall comply with the direction.

              (7)             It shall be the duty of the Authority, for the purpose of assisting the

Commission in carrying out an investigation on a reference under

this section or in carrying out functions under section 17P below, to

give to the Commission—

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                    (a)                   any information in the Authority’s possession which relates

to matters falling within the scope of the investigation or the

carrying out of those functions and which is either—

                           (i)                          requested by the Commission for that purpose; or

                           (ii)                         information which, in the Authority’s opinion, it

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would be appropriate for that purpose to give to the

Commission without any such request; and

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                    (b)                   any other assistance which the Commission may require, and

which it is within the Authority’s power to give, in relation to

any such matters,

                              and the Commission, for the purpose of carrying out any such

investigation or such functions, shall take account of any information

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given to it for that purpose under this subsection.

              (8)             In this section and the following provisions of this Chapter—

                                      “relevant conditions”—

                           (a)                          in relation to a reference under subsection (1) above,

means the conditions of the licence to which the

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reference relates; and

                           (b)                          in relation to a reference under subsection (2) above,

means the standard conditions of the licences to

which the reference relates; and

                                      “relevant licence holder” means the holder of a licence to which

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a reference under subsection (2) above relates.

              (9)             In determining for the purposes of this section whether any

particular matter operates, or may be expected to operate, against the

public interest, the Commission shall have regard to the matters as

respects which duties are imposed on the Secretary of State and the

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Authority by Part 1 of this Act.

       17L            References under section 17K: time limits

              (1)             Every reference under section 17K above shall specify a period (not

longer than six months beginning with the date of the reference)

within which a report on the reference is to be made.

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              (2)             A report of the Commission on a reference under section 17K above

shall not have effect (and no action shall be taken in relation to it

under section 17O below) unless the report is made before the end of

the period specified in the reference or such further period (if any) as

may be allowed by the Authority under subsection (3) below.

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              (3)             The Authority may, if it has received representations on the subject

from the Commission and is satisfied that there are special reasons

why the report cannot be made within the period specified in the

reference, extend that period by no more than six months.

              (4)             No more than one extension is possible under subsection (3) above

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in relation to the same reference.

              (5)             The Authority shall, in the case of an extension made by it under

subsection (3) above—

                    (a)                   publish that extension in such manner as the Authority

considers appropriate for the purpose of bringing it to the

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attention of persons likely to be affected by it; and

                    (b)                   send a copy of what has been published by it under

paragraph (a) above to the holder of the licence or, as the case

may be, the relevant licence holders.

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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       17M            References under section 17K: powers of investigation

              (1)             The following sections of Part 3 of the Enterprise Act 2002 shall

apply, with the modifications mentioned in subsections (2) and (3)

below, for the purposes of references under section 17K above as

they apply for the purposes of references under that Part—

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                    (a)                   section 109 (attendance of witnesses and production of

documents etc.);

                    (b)                   section 110 (enforcement of powers under section 109:

general);

                    (c)                   section 111 (penalties);

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                    (d)                   section 112 (penalties: main procedural requirements);

                    (e)                   section 113 (payments and interest by instalments);

                    (f)                   section 114 (appeals in relation to penalties);

                    (g)                   section 115 (recovery of penalties); and

                    (h)                   section 116 (statement of policy).

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              (2)             Section 110 shall, in its application by virtue of subsection (1) above,

have effect as if—

                    (a)                   subsection (2) were omitted; and

                    (b)                   in subsection (9) the words from “or section” to “section

65(3))” were omitted.

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              (3)             Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1)

above, have effect as if—

                    (a)                   for the words “published (or, in the case of a report under

section 50 or 65, given)” there were substituted “made”;

                    (b)                   for the words “published (or given)”, in both places where

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they appear, there were substituted “made”; and

                    (c)                   the words “by this Part” were omitted.

              (4)             Provisions of Part 3 of the Enterprise Act 2002 which have effect for

the purposes of sections 109 to 116 of that Act (including, in

particular, provisions relating to offences and the making of orders)

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shall, for the purposes of the application of those sections by virtue

of subsection (1) above, have effect in relation to those sections as

applied by virtue of that subsection.

              (5)             Accordingly, corresponding provisions of this Act shall not have

effect in relation to those sections as applied by virtue of that

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subsection.

       17N            Water supply licences: reports on modification references

              (1)             In making a report on a reference under section 17K above, the

Commission—

                    (a)                   shall include in the report definite conclusions on the

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questions comprised in the reference together with such an

account of its reasons for those conclusions as in its opinion

is expedient for facilitating a proper understanding of those

questions and of its conclusions;

                    (b)                   where it concludes that any of the matters specified in the

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reference operate, or may be expected to operate, against the

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                    (b)                   public interest, shall specify in the report the effects adverse

to the public interest which those matters have or may be

expected to have; and

                    (c)                   where it concludes that any adverse effects so specified could

be remedied or prevented by modifications of the relevant

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conditions, shall specify in the report modifications by which

those effects could be remedied or prevented.

              (2)             For the purposes of section 17O below, a conclusion contained in a

report of the Commission is to be disregarded if the conclusion is not

that of at least two-thirds of the members of the group constituted in

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connection with the reference concerned in pursuance of paragraph

15 of Schedule 7 to the Competition Act 1998.

              (3)             If a member of a group so constituted disagrees with any conclusions

contained in a report made on a reference under section 17K above

as the conclusions of the Commission, the report shall, if the member

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so wishes, include a statement of his disagreement and of his reasons

for disagreeing.

              (4)             For the purposes of the law relating to defamation, absolute privilege

attaches to any report made by the Commission on a reference under

section 17K above.

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              (5)             In making any report on a reference under section 17K above the

Commission must have regard to the following considerations

before disclosing any information.

              (6)             The first consideration is the need to exclude from disclosure (so far

as practicable) any information whose disclosure the Commission

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thinks is contrary to the public interest.

              (7)             The second consideration is the need to exclude from disclosure (so

far as practicable)—

                    (a)                   commercial information whose disclosure the Commission

thinks might significantly harm the legitimate business

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interests of the undertaking to which it relates; or

                    (b)                   information relating to the private affairs of an individual

whose disclosure the Commission thinks might significantly

harm the individual’s interests.

              (8)             The third consideration is the extent to which the disclosure of the

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information mentioned in subsection (7)(a) or (b) above is necessary

for the purposes of the report.

              (9)             A report of the Commission on a reference under section 17K above

shall be made to the Authority.

              (10)            Subject to subsection (13) below, the Authority shall—

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                    (a)                   on receiving a report on a reference under section 17K(1)

above, serve a copy of it on—

                           (i)                          the licence holder;

                           (ii)                         the Secretary of State; and

                           (iii)                        the Assembly; and

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                    (b)                   not earlier than the relevant time, publish another copy of the

report in such manner as it considers appropriate for

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                    (b)                   bringing the report to the attention of persons likely to be

affected by it.

              (11)            Subject to subsection (13) below, the Authority shall—

                    (a)                   on receiving a report on a reference under section 17K(2)

above, serve a copy of it on—

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                           (i)                          the Secretary of State; and

                           (ii)                         the Assembly; and

                    (b)                   not earlier than the relevant time—

                           (i)                          serve another copy on each relevant licence holder;

and

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                           (ii)                         not less than twenty-four hours after complying with

sub-paragraph (i) above, publish another copy of the

report in such manner as it considers appropriate for

bringing the report to the attention of persons likely

to be affected by it.

15

              (12)            For the purposes of subsections (10) and (11) above, the “relevant

time” means—

                    (a)                   fourteen days after the copy of the report in question is

received by the Secretary of State and the Assembly, or

                    (b)                   if copies are received by them on different days, fourteen

20

days after the later day.

              (13)            Subsection (14) below applies if it appears to the Secretary of State

that the publication of any matter in a report on a reference under

section 17K(1) or (2) above would be against—

                    (a)                   the public interest; or

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                    (b)                   the commercial interests of any person.

              (14)            The Secretary of State may, not later than the relevant time for the

purposes of subsection (10) or (11) above, direct the Authority to

exclude that matter from the copy of the report, or (as the case may

be) each copy of the report, to be served and published as mentioned

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in paragraph (b) of that subsection; and the Authority shall comply

with any such direction.

       17O            Water supply licences: modification following report

              (1)             Where a report of the Commission on a reference under section 17K

above—

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                    (a)                   includes conclusions to the effect that any of the matters

specified in the reference operate, or may be expected to

operate, against the public interest;

                    (b)                   specifies effects adverse to the public interest which those

matters have or may be expected to have;

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                    (c)                   includes conclusions to the effect that those effects could be

remedied or prevented by modifications of the relevant

conditions; and

                    (d)                   specifies modifications by which those effects could be

remedied or prevented,

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                              the Authority shall, subject to the following provisions of this

section, make such modifications of the relevant conditions as

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                              appear to it requisite for the purpose of remedying or preventing the

adverse effects specified in the report.

              (2)             Where at any time it modifies under subsection (1) above the

standard conditions of retail licences or combined licences in

consequence of a reference under section 17K(2) above, the

5

Authority may make such incidental and consequential

modifications as it considers necessary or expedient of any

conditions of licences of that description.

              (3)             Before making modifications under this section, the Authority shall

have regard to the modifications specified in the report.

10

              (4)             Before making modifications under this section, the Authority shall

give notice—

                    (a)                   stating that it proposes to make the modifications and setting

out their effect;

                    (b)                   stating the reasons why it proposes to make the

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modifications; and

                    (c)                   specifying the period (not being less than twenty-eight days

from the date of publication of the notice) within which

representations or objections with respect to the proposed

modifications may be made,

20

                              and shall consider any representations or objections which are duly

made and not withdrawn.

              (5)             A notice under subsection (4) above shall be given—

                    (a)                   by publishing the notice in such manner as the Authority

considers appropriate for the purpose of bringing the matters

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to which the notice relates to the attention of persons likely to

be affected by the making of the modifications;

                    (b)                   by serving a copy of the notice on the holder of the licence in

question or, as the case may be, the relevant licence holders;

and

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                    (c)                   by serving a copy of the notice on—

                           (i)                          the Secretary of State;

                           (ii)                         the Assembly; and

                           (iii)                        the Chief Inspector of Drinking Water.

              (6)             After considering any representations or objections made in

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response to proposals set out in a notice under subsection (4) above,

the Authority shall give notice to the Commission—

                    (a)                   setting out the modifications it proposes to make to remedy

or prevent the adverse effects specified in the report; and

                    (b)                   stating the reasons for making the modifications.

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              (7)             The Authority shall include with the notice under subsection (6)

above a copy of any representations or objections received in relation

to the notice under subsection (4) above.

              (8)             If the period of four weeks from the date on which the notice under

subsection (6) above is given elapses without a direction under

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section 17P(1)(a) below having been given to it, the Authority shall—

                    (a)                   make the modifications set out in the notice; or

 

 

 
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