Water Bill [HL]—
Amendments to be debated in the House of Lordscontinued

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Clause 39

 

THE BARONESS O'CATHAIN
THE BARONESS BYFORD

99Page 44, line 21, at end insert—
"(1A)  The Secretary of State in continuing to exercise his power to issue guidance under subsection (1) above must take into account the costs that may have to be met by any relevant undertaker or by any consumer."
 

THE BARONESS BYFORD
THE DUKE OF MONTROSE
THE LORD DIXON-SMITH

100Page 44, line 37, after "forty" insert "working"
 

After Clause 39

 

THE BARONESS O'CATHAIN
THE BARONESS BYFORD
THE BARONESS MILLER OF CHILTHORNE DOMER
THE LORD LIVSEY OF TALGARTH

101Insert the following new Clause—
  "Authority's statement of policy
  After section 2 of the WIA there is inserted—
"2BAuthority's statement of policy
(1)  The Authority shall prepare and publish a statement of policy with respect to its determination of charges in periodic reviews and interim determinations under all or any of the instruments of appointment of companies as relevant undertakers made by virtue of Part 2 of this Act.
(2)  The Authority's statement of policy under this section shall include a statement of its policy with regard to—
(a)  the carrying out of its duties under this Act insofar as they relate to its determination of charges;
(b)  the matters to be taken into account and the methodologies to be applied in its determination of charges; and
(c)  the extent to which the performance of functions by persons with powers and duties conferred or imposed by or under this Act or any other enactment are relevant to its determination of charges.
(3)  The Authority shall determine charges in periodic reviews and interim determinations under a company's instrument of appointment as a relevant undertaker on the basis of the most recently published statement of policy.
(4)  The Authority may revise its statement of policy and where it does so shall publish the revised statement.
(5)  Publication under this section shall be in such manner as the Authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them and shall not be made less than twelve months before a periodic review.
(6)  When preparing or revising its statement of policy under this section, the Authority shall consult relevant undertakers and such other persons as it considers appropriate, subject to the requirements of subsection (7).
(7)  For the purposes of subsection (6)—
(a)  consultation shall be by way of written notice given by the Authority not less than six months prior to the publication of the statement of policy which it is preparing or revising;
(b)  such notice shall state—
(i)  the matters which the Authority proposes to publish in its statement of policy and its reasons for including them in the statement; and
(ii)  a period of not less than three months within which that person may give written notice of objection with respect to the matters referred to in the notice; and
(c)  the Authority shall give each person reasonable opportunity to make oral representations to it on the matters referred to in the notice.
(8)  The Authority shall not issue or publish a statement of policy unless—
(a)  no notice of objection to the policy is given to the Authority within the time period specified in its notice under subsection (7); or
(b)  if one or more relevant undertakers gives notice of objection to the Authority within that time—
(i)  the proportion (expressed as a percentage) of the relevant undertakers who have given notice of objection is less than such percentage as may be prescribed; and
(ii)  the percentage given by subsection (9) is less than such percentage as may be prescribed.
(9)  The percentage given by this subsection is the proportion (expressed as a percentage) of the relevant undertakers who have given notice of objection, weighted according to their market share in such manner as may be prescribed.
(10)  If the conditions referred to in subsection (8) are not met, the Authority shall (within three months of its receipt of the first or only notice of objection) refer the policy to the Competition Commission for review.
(11)  Where a reference is made to the Competition Commission under this section, it shall be the duty of the Competition Commission to determine whether the policy which is the subject of the reference operates in a manner best calculated to fulfil the duties of the Authority arising under this Act.
(12)  Where a reference is made to the Competition Commission under this section, the Authority shall not prepare or revise its statement of policy other than on the basis of the determinations of the Competition Commission.
(13)  The Secretary of State may by regulations make such provision as he considers appropriate for regulating the procedure to be followed with respect to any reference to the Competition Commission under this section.
(14)  Without prejudice to the generality of the power conferred by subsection (13), regulations under that subsection may, in relation to any such reference, apply (with or without modifications) the provisions of any enactment relating to the references to the Competition Commission under the provisions of this Act, the Fair Trading Act 1973 (c. 41) or the Competition Act 1998 (c. 41).""
 

THE BARONESS O'CATHAIN
THE BARONESS BYFORD

102Insert the following new Clause—
  "Coordinated regulation
  After section 5 of the WIA there is inserted—
 "PART 1ACoordinated regulation
5ACoordinated regulation
(1)  In this section—
(a)  the Agency, the Authority, the Chief Inspector of Drinking Water and (if and while separately appointed) the Chief Inspector of Drinking Water for Wales and the Consumer Council for Wales shall together be referred to as "the regulators";
(b)  water undertakers, sewerage undertakers, licensed water suppliers, and all other persons engaged in water supply, or the drainage or disposal of sewage, shall together be referred to as "the water industry" or "water industry bodies";
(c)  "final price determinations" means final price determinations issued by the Authority pursuant to periodic reviews carried out by it under all or any of the instruments of appointment of companies as water or sewerage undertakers;
(d)  "the consultees" means the persons that the Secretary of State is required to consult under subsection (3) below;
(e)  under subsections (2), (6), (9) and (11) below—
(i)  the duties of the Assembly shall relate to water industry bodies whose areas are wholly or mainly in Wales; and
(ii)  the duties of the Secretary of State shall relate to all other water industry bodies.
(2)  The Secretary of State, the Assembly and the regulators shall exercise all their statutory powers and duties, which relate to or may affect the water industry, in a coordinated manner.
(3)  To that end, the Secretary of State and the Assembly shall from time to time (and so often as may be necessary for the purposes of subsection (6) below) consult each other and the regulators, the Council, representatives of the water industry, and such other persons as they consider appropriate, for the purpose set out in subsection (4) below.
(4)  The purpose referred to in subsection (3) above is the consideration of—
(a)  the policies that should be pursued by the water industry in the long term interests of consumers;
(b)  the costs and benefits of those policies;
(c)  the times within which those policies should be implemented; and
(d)  accordingly how those policies should be funded.
(5)  Without prejudice to the generality of subsection (4) above, in considering the matters referred to in that subsection, the Secretary of State, the Authority and consultees shall take into account—
(a)  the duties imposed on the Secretary of State, the Assembly and the Authority under sections 2 and 2A of the WIA;
(b)  all other statutory duties and Community obligations imposed on the Secretary of State, the Assembly and the regulators which relate to or may affect the water industry; and
(c)  all statutory and regulatory duties, and Community obligations, imposed on the water industry.
(6)  The Secretary of State and the Assembly shall, at least twelve months before each occasion on which the Authority is due to issue final price determinations, issue a direction to the regulators on the matters listed under subsection (4) above, taking into account the matters listed under subsection (5) above.
(7)  The Secretary of State and the Assembly shall, in formulating such direction, take into account the consultations carried out under subsection (3) above.
(8)  The Authority shall give to the Secretary of State, the Assembly, the other regulators, the Council and the water industry at least eighteen months prior written notice of the date on which he will issue any final price determination referred to under subsection (6) above.
(9)  The Secretary of State, the Assembly and the regulators—
(a)  shall exercise all their statutory powers and duties, including their powers to issue directions and guidance (other than that contained in subsection (6) above), in accordance with the direction from time to time issued under subsection (6) above; and
(b)  to that end, and for the purpose of meeting the requirement set out in subsection (2) above, shall consult and cooperate with one another in relation to the exercise of their respective powers and duties.""
103Insert the following new Clause—
  "Narrowing scope of regulatory appeals
  In section 12 of the WIA, after subsection (4) there is inserted—
"(4A)  In determining any question or other matter under subsection (3) above, the Competition Commission may consider as determined any matter in respect of which the appointed company does not dispute the determination by the Authority.""
104Insert the following new Clause—
  "Licence modifications
  In section 14 of the WIA, after subsection (1) there is inserted—
"(1A)  Where a company has requested the Authority to modify the conditions of its appointment and the Authority has not consented to making the modifications, the Authority shall make to the Competition Commission a reference which is so framed as to require the Competition Commission to investigate and report on the questions in subsection (1).
(1B)  Before making a reference under subsection (1) or (1A), the Authority shall give notice of the matters specified in the reference to the company to whose conditions of appointment the modification relates and shall take into account any representations or objections which are duly made and not withdrawn.
(1C)  Notice under subsection (1B) shall be in writing and shall specify a period of not less than 28 days from the date of receipt of the notice within which representations or objections with respect to the matters proposed to be specified in the reference may be made.""
105Insert the following new Clause—
  "Regulatory appeals
  After section 17 of the WIA there is inserted—
 "CHAPTER 1ARegulatory appeals
17AANotice of appeal
(1)  This section applies to any decision made by any relevant decision-maker (acting other than in a wholly adjudicatory capacity) under this Act, the Reservoirs Act 1975, the Water Resources Act 1991 or the Water Act 2003 against which there is no statutory right of appeal against the merits of that decision to any independent appeal body.
(2)  Without prejudice to the generality of subsection (1), such decisions include any decisions—
(a)  relating to the public disclosure of information; or
(b)  made under any of the provisions listed under Schedule 16 below.
(3)  The Secretary of State may add to the provisions listed under inserted Schedule 16 below by regulations.
(4)  Subject to section 17AD(2) below, a person affected by a decision to which this section applies may appeal against it to the Competition Appeal Tribunal or such other relevant body as the Tribunal considers appropriate.
(5)  The means of making an appeal is by sending the Competition Appeal Tribunal a notice of appeal in accordance with Competition Appeal Tribunal rules under section 15 of the Enterprise Act 2002.
(6)  The notice of appeal must be sent within the period specified, in relation to the decision appealed against, in those rules.
(7)  The notice of appeal must set out—
(a)  the provision under which the decision appealed against was taken; and
(b)  the grounds of appeal.
(8)  The grounds of appeal must be set out in sufficient detail to indicate—
(a)  to what extent (if any) the appellant contends that the decision appealed against was based on an error of fact or was wrong in law or both; and
(b)  to what extent (if any) the appellant is appealing against the exercise of a discretion by the relevant decision-maker.
(9)  In this section references to a decision under an enactment—
(a)  include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but
(b)  include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty.
(10)  For the purposes of this section a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.
17ABDisposal of appeal
(1)  The relevant appeal body shall dispose of an appeal under section 17AA in accordance with this section.
(2)  The relevant appeal body shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.
(3)  The relevant appeal body's decision must include a decision as to what (if any) is the appropriate action for the decision-maker to take in relation to the subject-matter of the decision under appeal.
(4)  The relevant appeal body shall then remit the decision under appeal to the relevant decision-maker with such directions (if any) as the relevant appeal body considers appropriate for giving effect to its decision.
(5)  The relevant appeal body must not direct the decision-maker to take any action which it would not otherwise have power to take in relation to the decision under appeal.
(6)  It shall be the duty of the decision-maker to comply with every direction given under subsection (4).
17ACAppeal of decision
(1)  A decision of the relevant appeal body on an appeal under section 17AA may itself be appealed.
(2)  An appeal under this section—
(a)  lies to the High Court; and
(b)  must relate only to a point of law arising from the decision of the relevant appeal body.
(3)  An appeal under this section may be brought by—
(a)  a party to the proceedings before the relevant appeal body; or
(b)  any other person who has a sufficient interest in the matter.
(4)  An appeal under this section requires the permission of the relevant appeal body or of the court to which it is to be made.
17ADInterpretation
(1)  In this Chapter—
 "the relevant appeal body" means the Competition Appeal Tribunal or such other of the following bodies which the Tribunal considers appropriate to hear the appeal—
(a)  the Competition Commission;
(b)  the Lands Tribunal;
(c)  a Government Inspector;
(d)  an arbitrator appointed by agreement between the appellant and the decision-maker; and
 "the relevant decision-maker" means the Director, the Environment Agency, the Secretary of State or the National Assembly for Wales where they take a decision which is appealable under section 17AA.
(2)  The Secretary of State may by regulations prescribe the relevant appeal body by which particular types of appeal are to be determined and accordingly with which those appeals are to be lodged.""
106Insert the following new Clause—
  "Regulatory appeals
  Schedule 6A, which inserts Schedule 16 relating to regulatory appeals into the WIA, shall have effect."

 
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2 April 2003