PROPOSAL FOR THE DRAFT REGULATORY REFORM
(BRITISH WATERWAYS BOARD) ORDER 2003
Letter from the Clerk to the Department
for Environment, Food and Rural Affairs
The Committee has given preliminary consideration
to this proposal and requests that the Department provide further
written information in relation to the matters set out below:
Paragraph 30 of the Statement says that "Section
62 of the Transport Act 1962 requires British Waterways to ensure
that any abstraction of water from a waterway does not conflict
with any of its obligations, particularly any obligation to maintain
a waterway in a navigable condition". This is relied on as
being part of the maintenance of necessary protection. But section
62 is about local enactments only. Section 62(2)(b) provides that
section 62(1) (which extends the purposes for which the Board
may take water under local enactments) shall not be taken as authorising
the Board to do certain things, in particular to affect flow levels
to a degree which conflicts with its obligations. Please state
how equivalent protection is maintained for activities which do
not consist of abstraction water in the circumstances specified
in section 62(1).
Assuming that borrowing could be regarded as an "activity"
for the purposes of section 50(8) of the Transport Act 1968, please
explain why borrowing by the joint venture company would count
as borrowing by the Board for the purposes of the limit in section
19 of the Transport Act 1962. In particular, is "activities"
considered to include not just the act of borrowing but also the
extent of borrowing?
Please explain in what way the proposed order is
limited to non-subsidiary companies (paragraph 25(b) of the Department's
Statement). Is this because section 25(1)(a) of the 1962 Act has
always been regarded as having the effect which Leading Counsel
now advises that section 50(8) of the 1968 Act may have?
Finally, please indicate whether the proposed order
has any implications for the management of the Rivers Tweed and
31 January 2003