Select Committee on Delegated Powers and Regulatory Reform Twenty-Third Report


ANNEX 3

WATER BILL - GOVERNMENT AMENDMENTS FOR COMMITTEE ON RE-COMMITMENT AND THIRD READING

Supplementary Memorandum by the Department for Environment, Food and Rural Affairs

1. Further to the memorandum from the Department for Environment, Food and Rural Affairs reported on in the 12th Report of the Committee, this supplementary memorandum covers Government amendments to two new sections of the Water Industry Act to be inserted by Schedule 4 to the Bill. Neither of these amendments extends the delegated powers under these sections. The first limits the power and the second clarifies the powers. It also addresses amendments of sections 87 -91 of the Water Industry Act 1991 (to be inserted after clause 58 of the Water Bill), which relate to fluoridation and propose three new provisions for delegated legislation.

COMPETITION

Section 17F - Procedure for granting water supply licences

2. Section 17F provides for the procedure for granting water supply licences. Subsection (5) allows the Secretary of State to make provision (subject to negative procedure) to disapply the requirements to advertise applications and to provide a notice to the applicant if it is proposed to refuse the application. The Government has proposed an amendment to subsection (5) that will limit the Secretary of State's ability to disapply advertising requirements. We do not consider there are circumstances where on a refusal it would be appropriate to disapply the requirement for a notice to the applicant.

Section 17J - Modification of standard conditions of water supply licences

3. Section 17J enables the Secretary of State to make an order (subject to the affirmative procedure) to provide for modification of the water suppliers' standard licence conditions with the agreement of a prescribed proportion of licence holders. The provision allows the Secretary of State to prescribe two proportions. In subsection (6)(b) there is power to prescribe a proportion of the number of licence holders whose objection would prevent a modification being made. In subsection (7), there is power to prescribe a proportion of market share of the licence holders required before their objection would prevent a modification. In this latter case, the Government has proposed an amendment to clarify that the order may specify the time at which the proportion of market share of individual licence holders is calculated. It is implicit that it is necessary to spell out the relevant time at which market share is calculated but it is thought better to make this clear on the face of the power.

FLUORIDATION

4. The Water Industry Act 1991 currently contains provisions which enable health authorities and undertakers to agree to enter arrangements to fluoridate water supplies in a specified area. We are proposing to amend these provisions so that undertakers will be under a duty to fluoridate when requested by a Health Authority. The Health Authority will be required to assess local opinion before they make any such request.

Section 88A - Power to vary the target concentration of fluoride

5. Section 87 (5) of the 1991 Act specifies a target concentration of fluoride in drinking water below the one milligram per litre. This target is carried forward by the Bill. The proposed amendment allows for regulations that would permit a reduction in this target concentration. This might be appropriate if it was found that, as a result of increased use of discretionary fluorides like toothpaste and mouthwashes, the desired reductions in tooth decay could be achieved at a lower concentration of fluoride in water.

6. The reason for delegation is to provide additional flexibility and the ability to act promptly in making changes of a technical nature which, currently, can only be made by amending primary legislation. We propose that the Secretary of State is empowered to reduce the target by statutory instrument subject to affirmative resolution.

7. By virtue of the devolution clause (97) the National Assembly for Wales would be empowered to exercise the order making power in relation to Wales, subject to scrutiny in accordance with the Government of Wales Act 1998

Section 89 (3) - Consultations and opinion measuring about arrangements to fluoridate a water supply

8. We wish to replace Section 89 of the Act with a requirement for more wide-ranging procedures, when a Strategic Health Authority or the National Assembly for Wales proposes to introduce a new fluoridation scheme or review an existing one. The procedures would be specified in regulations which would cover the publicity of the scheme, consultations within the community and the measurement of public opinion on the proposal. The reason for delegation is that we envisage a need for further updates at regular intervals to take account of changes in the organisation of the NHS and the measures by which consultations are conducted. For example, we might wish to give Primary Care Trusts a formal role in the consultation process and we wish to keep pace with developments in information technology to inform consultations and, perhaps, help survey local opinion. We could also use the power to make changes to the consultation process in the light of experience gathered in the course of previous consultations.

9. The reason for delegation is to enable the Secretary of State to react to the need to make changes to these procedural aspects of the legislation at shorter notice than might be possible if they were prescribed in primary legislation. We propose that the Secretary of State is empowered to set down the detailed procedures in a statutory instrument subject to negative resolution, with the National Assembly for Wales being empowered to make regulations affecting consultation over Welsh proposals, such regulations being subject to scrutiny in accordance with the GOWA 1998.

Section 90 (2) - Issue to water undertakers of indemnities

10. Section 90 of the 1991 Act empowers the Secretary of State, with the consent of Treasury, to agree to indemnify water undertakers in respect of liabilities incurred by their fluoridating water. This power is carried forward by the Bill; however it does not describe the range of these indemnities or their detailed application. Naturally these matters are of particular concern to the water undertakers and these amendments to the Water Bill would provide fuller details about the matters for which indemnities would be granted in regulations, perhaps in the form of model indemnities which would be worked up in consultation with the water industry and HM Treasury.

11. We anticipate that this guidance material will need developing in the light of experience of the arrangements made with water undertakers for fluoridation schemes and any use made of the indemnities. We do not feel that these matters merit inclusion in primary legislation and they are likely to be subject to regular amendment. Accordingly we propose that the Secretary of State is empowered to set down the details of the indemnities in a statutory instrument subject to negative resolution.

12. In view of the effect of the devolution clause (97) the National Assembly for Wales would exercise the power in relation to indemnities regarding liabilities arising out of Welsh schemes, with no formal role for HM Treasury.

7 July 2003


 
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