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
Section 17F - Procedure for granting water supply
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.
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
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
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
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