Select Committee on Delegated Powers and Regulatory Reform Twelfth Report



This bill makes a number of changes to the law affecting various aspects of water. In particular it alters the abstraction licensing system (Part 1), alters arrangements for the regulation of the water industry (Part 2), makes fresh provision for the supply of non-household customers with large volumes of water (Part 2), and alters the arrangements for land drainage, reservoirs and contaminated land (so far as relates to pollution of water) (Part 3).


There is a significant number of delegated powers in the bill. These are mainly identified in the memorandum to the Committee from the Department for Environment, Food and Rural Affairs (DEFRA). There are also delegated powers at clause 13 (new section 36A(2)), paragraph 3 of Schedule 4 (new section 66A(6)) and paragraph 15 of Schedule 8 (new section 68(3A)). The memorandum is printed at Annex 2 to this Report.

Some of the powers are conferred, in relation to Wales, on the National Assembly for Wales. Some of the other powers, though conferred on the Secretary of State alone, are exercisable in relation to Wales by the National Assembly, because of clause 92. Where powers are exercisable by the National Assembly, the Assembly procedures (and no Westminster Parliament procedures) apply.

Many of the delegated powers in the bill build on, or replace, powers already in the Water Industry Act 1991 (WIA) or the Water Resources Act 1991 (WRA). Others reflect the powers in relation to the electricity and gas industries contained in the Utilities Act 2000. In this Report, we consider some of the more significant powers.

Affirmative Powers

Clause 81 replaces section 139 of the WIA. It contains power for the Secretary of State by order to provide that liquid or other matter which is not trade effluent shall be treated as such for the purposes of Chapter 3 of Part 4 of the WIA (which is about, in particular, discharge into public sewers). This is broadly similar to the existing powers. The new section 139 also allows an order to exempt from discharge restrictions and to deem liquids which are trade effluent not to be trade effluent.

Paragraph 2 of Schedule 4 inserts a new Chapter 1A in Part 2 of the WIA. The new Chapter is about the licensing of water suppliers to supply water to non-household premises. But a water supply licence can be given only if the estimate of water to be supplied to each of the customer's premises is at least 50 megalitres a year (new sections 17A(3)(b) and 17D(2)). New section 17D(8) allows the Secretary of State (for Wales, the National Assembly - new section 17D(12)) to alter the 50 megalitre threshold by regulations. The scope of the power is narrow and the significance of its exercise is recognised by the affirmative procedure (for regulations by the Secretary of State).

New section 17J in new Chapter 1A of Part 2 of the WIA is about modification of standard conditions for water supply licences. But the Water Services Regulation Authority cannot modify standard conditions if more than a stated proportion of relevant licence holders object. The proportion is stated in an order made by the Secretary of State, subject to affirmative procedure.

We take the view that in respect of each of the powers set out in paragraphs 12 to 14 above, both the delegation and the level of scrutiny are appropriate.

Negative Henry VIII Powers

The power to vary the small quantity threshold for abstraction licences (clause 6 - new section 27A of the WRA) might be considered a Henry VIII power, but is limited to particular areas or classes of waters, etc. We believe that both the delegation and the negative procedure in this case are appropriate.

Clause 95(1) and (6) enables the Secretary of State or the National Assembly for Wales to make such supplementary, incidental, consequential, transitory, transitional or saving provision as is considered necessary or expedient for the purposes of, or in consequence of, any provision of the bill. By clause 95(2) the order may amend Acts of Parliament. The formula used is well-precedented and we accept that the delegation is appropriate. We do not believe, however, that the Committee's presumption that the affirmative procedure should apply where the order amends or repeals an Act of Parliament has been rebutted. We recommend that the power to amend or repeal an Act of Parliament under clause 95(2) should be subject to affirmative procedure.

Clause 96 is framed in similar terms, but concerns the extension of other powers granted elsewhere in the bill. Clause 96(6) provides that any power under the Act to make orders or regulations includes power to make such incidental, supplementary, consequential, saving or transitional provision as is considered expedient. This includes amending or repealing Acts of Parliament. The powers to which the provision applies are those comparatively few powers conferred by the bill itself rather than by amendments to other Acts. But we again take the view that the Committee's presumption that the affirmative procedure should apply where the order amends or repeals an Act of Parliament has not been rebutted. We recommend that the power to amend or repeal an Act of Parliament under clause 96(6) should be subject to affirmative procedure.


Subject to the recommendations made in paragraphs 17 and 18 above, there is nothing in the delegated powers in this bill to which the Committee wishes to draw the attention of the House.

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