40 Guidance to Authority on social and environmental matters
After section 2 of the WIA there is inserted—
Guidance on social and environmental matters
2A (1) Guidance may be issued from time to time—
(a) by the Assembly, with respect to appointment areas which are wholly or mainly in Wales; and
(b) by the Secretary of State, with respect to other appointment areas,
about the making by the Authority of a contribution towards the attainment of any social or environmental policies set out or referred to in the guidance.
(2) In formulating guidance, the Secretary of State and the Assembly shall, where practicable, have regard to the costs and benefits which may be expected to result from the guidance.
(3) The Authority shall, in exercising and performing the powers and duties mentioned in section 2(1) above (subject to section 2(6) above), have regard to any guidance issued under this section.
(4) Before issuing guidance under this section the Secretary of State and the Assembly shall consult—
(a) the Authority;
(b) the Council;
(c) in the case of the Secretary of State, the Assembly and vice versa;
(d) relevant undertakers;
(e) licensed water suppliers; and
(f) such other persons as the Secretary of State or the Assembly considers it appropriate to consult in relation to the guidance.
(5) A draft of any guidance proposed to be issued by the Secretary of State under this section shall be laid before each House of Parliament.
(6) Guidance shall not be issued by the Secretary of State under this section until after the period of forty days beginning with—
(a) the day on which the draft is laid before each House of Parliament; or
(b) if the draft is laid before the House of Lords on one day and the House of Commons on another, the later of those two days.
(7) If, before the end of that period, either House resolves that the guidance should not be issued, the Secretary of State must not issue it.
(8) In reckoning any period of forty days for the purposes of subsection (6) or (7) above, no account shall be taken of any time during which—
(a) Parliament is dissolved or prorogued; or
(b) both Houses are adjourned for more than four days.
(9) The Secretary of State and the Assembly shall arrange for any guidance issued by him or it under this section to be published in such manner as he or it considers appropriate.
(10) In this section, an “appointment area” is an area for which an appointment is held under Chapter 1 of Part 2 of this Act.
41 Standards of performance in relation to water supply
(1) Section 39 of the WIA (procedure for making regulations relating to performance standards in connection with water supply) is amended as follows.
(2) Before subsection (1) there is inserted—
(A1) The Secretary of State may make regulations under section 38 above—
(a) on an application by the Authority, in accordance with subsections (1) to (3) below; or
(b) otherwise than on such an application, in accordance with subsections (4) to (8) below.
(3) In subsection (1)—
(a) for the words preceding paragraph (a), and paragraph (a), there is substituted “ Where the Authority has made to the Secretary of State a written application complying with subsection (2) below, the Secretary of State may make regulations under section 38 above if— ”,
(b) in paragraph (b), the “and” at the end of sub-paragraph (i) is omitted, and after sub-paragraph (ii) there is inserted—
(iii) on the Council; and
(iv) on such other persons or bodies as the Secretary of State may consider appropriate;
,
(c) in paragraph (c)(ii), for “(b)(ii)” there is substituted “ (b) ”.
(4) In subsection (2)—
(a) in paragraph (a), for “draft provisions proposed by the Director for inclusion in” there is substituted “ the Authority’s proposals for the making of ”,
(b) in paragraph (b), for “those provisions” there is substituted “ the regulations ”.
(5) In subsection (3)—
(a) for “under section 38 above” there is substituted “ on an application by the Authority under this section ”,
(b) in paragraph (a), for “the provisions proposed by the Director in his application or those provisions” there is substituted “ those which in the opinion of the Secretary of State give effect to the proposals set out in the Authority’s application or to those proposals ”,
(c) in paragraph (b), the “and” at the end of sub-paragraph (i) is omitted, and after sub-paragraph (ii) there is inserted
and
(iii) to any person or body on whom a copy of the Authority’s application was served under subsection (1)(b) above.
(6) After subsection (3) there is added—
(4) Where no such application as is mentioned in subsection (1) above has been made, the Secretary of State may make regulations under section 38 above only if he considers—
(a) that the regulations will contribute towards the attainment of policies relating to public health or the environment; or
(b) (if he does not consider that they will so contribute) that there are exceptional reasons why it is otherwise in the public interest that the regulations should be made.
(5) Before making regulations under section 38 above by virtue of subsection (4) above, the Secretary of State shall—
(a) give notice of his proposals;
(b) consider the results of the research carried out in accordance with subsection (7) below; and
(c) consider every representation or objection with respect to the proposals which has been duly made and not withdrawn.
(6) A notice under subsection (5)(a) above must—
(a) summarise the Secretary of State’s reasons for his proposals;
(b) specify the water undertaker or undertakers in relation to which it is proposed the regulations should apply; and
(c) specify the period within which objections or representations with respect to the proposals may be made.
(7) Before giving notice under subsection (5)(a) above the Secretary of State shall arrange for such research as he considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected.
(8) A notice under subsection (5)(a) above shall be given by serving a copy on—
(a) the Authority;
(b) the Council;
(c) every water undertaker to which the regulations will apply;
(d) persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations; and
(e) such other persons or bodies as the Secretary of State may consider appropriate.
42 Standards of performance in relation to sewerage services
(1) Section 96 of the WIA (procedure for making regulations relating to performance standards in connection with sewerage services) is amended as follows.
(2) Before subsection (1) there is inserted—
(A1) The Secretary of State may make regulations under section 95 above—
(a) on an application by the Authority, in accordance with subsections (1) to (3) below; or
(b) otherwise than on such an application, in accordance with subsections (4) to (8) below.
(3) In subsection (1)—
(a) for the words preceding paragraph (a), and paragraph (a), there is substituted “ Where the Authority has made to the Secretary of State a written application complying with subsection (2) below, the Secretary of State may make regulations under section 95 above if— ”,
(b) in paragraph (b), the “and” at the end of sub-paragraph (i) is omitted, and after sub-paragraph (ii) there is inserted—
(iii) on the Council; and
(iv) on such other persons or bodies as the Secretary of State may consider appropriate;
,
(c) in paragraph (c)(ii), for “(b)(ii)” there is substituted “ (b) ”.
(4) In subsection (2)—
(a) in paragraph (a), for “draft provisions proposed by the Director for inclusion in” there is substituted “ the Authority’s proposals for the making of ”,
(b) in paragraph (b), for “those provisions” there is substituted “ the regulations ”.
(5) In subsection (3)—
(a) for “under section 95 above” there is substituted “ on an application by the Authority under this section ”,
(b) in paragraph (a), for “the provisions proposed by the Director in his application or those provisions” there is substituted “ those which in the opinion of the Secretary of State give effect to the proposals set out in the Authority’s application or to those proposals ”,
(c) in paragraph (b), the “and” at the end of sub-paragraph (i) is omitted, and after sub-paragraph (ii) there is inserted
and
(iii) to any person or body on whom a copy of the Authority’s application was served under subsection (1)(b) above.
(6) After subsection (3) there is added—
(4) Where no such application as is mentioned in subsection (1) above has been made, the Secretary of State may make regulations under section 95 above only if he considers—
(a) that the regulations will contribute towards the attainment of policies relating to public health or the environment; or
(b) (if he does not consider that they will so contribute) that there are exceptional reasons why it is otherwise in the public interest that the regulations should be made.
(5) Before making regulations under section 95 above by virtue of subsection (4) above, the Secretary of State shall—
(a) give notice of his proposals;
(b) consider the results of the research carried out in accordance with subsection (7) below; and
(c) consider every representation or objection with respect to the proposals which has been duly made and not withdrawn.
(6) A notice under subsection (5)(a) above must—
(a) summarise the Secretary of State’s reasons for his proposals;
(b) specify the sewerage undertaker or undertakers in relation to which it is proposed the regulations should apply; and
(c) specify the period within which objections or representations with respect to the proposals may be made.
(7) Before giving notice under subsection (5)(a) above the Secretary of State shall arrange for such research as he considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected.
(8) A notice under subsection (5)(a) above shall be given by serving a copy on—
(a) the Authority;
(b) the Council;
(c) every sewerage undertaker to which the regulations will apply;
(d) persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations; and
(e) such other persons or bodies as the Secretary of State may consider appropriate.
(1) After section 27B of the WIA (which is inserted by section 35) there is inserted—
General functions of the Council
The interests of consumers
27C (1) In considering the interests of consumers, the Council shall have regard to the interests of—
(a) individuals who are disabled or chronically sick;
(b) individuals of pensionable age;
(c) individuals with low incomes;
(d) individuals residing in rural areas; and
(e) customers, of companies holding an appointment under Chapter 1 of Part 2 of this Act, whose premises are not eligible to be supplied by a licensed water supplier,
but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.
(2) For the purposes of subsection (1) above, premises are not eligible to be supplied by a licensed water supplier if—
(a) they are household premises (as defined in section 17C above); or
(b) the total quantity of water estimated to be supplied to the premises annually for the purposes of subsection (2) of section 17D above is less than the quantity specified in that subsection.
Acquisition and review of information
27D The Council shall have the function of obtaining and keeping under review—
(a) information about consumer matters (including matters affecting consumers in different areas); and
(b) information about the views of consumers on such matters (including the views of consumers in different areas).
Provision of advice and information to public authorities
27E (1) The Council shall have the function of—
(a) making proposals, or providing advice and information, about consumer matters (including matters affecting consumers in different areas); and
(b) representing the views of consumers on such matters (including the views of consumers in different areas),
to public authorities, companies holding an appointment under Chapter 1 of this Part, licensed water suppliers and other persons whose activities may affect the interests of consumers.
(2) Subject to subsection (7) below, information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be disclosed in the exercise of the Council’s function under this section unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.
(3) Information relating to a particular individual or body may be disclosed if—
(a) the individual or body has consented to the disclosure;
(b) it is information that is available to the public from some other source; or
(c) it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.
(4) Before deciding to disclose any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—
(a) consult that individual or body; and
(b) have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its disclosure;
and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.
(5) Subject to subsection (7) below, the Council shall not in the exercise of its function under this section disclose any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.
(6) In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.
(7) Subsections (2) to (5) above do not apply to a disclosure of information which is made to the Authority, the Secretary of State, the Assembly, the Competition Commission or any other public authority.
(8) The disclosure by the Council of information in the exercise of its function under this section does not contravene section 206 below (restriction on disclosure of information).
Provision of information to consumers
27F (1) The Council has the function of providing information to consumers about consumer matters in such form as appears to the Council to be most useful to the recipients.
(2) That function may be exercised by—
(a) publishing information in any manner the Council thinks appropriate for the purpose of bringing it to the attention of those likely to be interested; or
(b) furnishing information to any consumer (whether in response to a request or otherwise).
(3) Information may only be disclosed in the exercise of that function if it is information that is available to members of the public from some other source.
(4) The Council shall maintain at least one office in each of England and Wales at which consumers may apply for information.
Power to publish information and advice about consumer matters
27G (1) If it appears to the Council that the publication of any advice and information about consumer matters (including information about the views of consumers on such matters) would promote the interests of consumers, the Council may publish that advice or information in such manner as it thinks fit.
(2) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be published in the exercise of the Council’s function under this section unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.
(3) Information relating to a particular individual or body may be published if—
(a) the individual or body has consented to the publication;
(b) it is information that is available to the public from some other source; or
(c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.
(4) Before deciding to publish any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—
(a) consult that individual or body; and
(b) have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its publication;
and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.
(5) The Council shall not in the exercise of its function under this section publish any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.
(6) In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.
(7) The publication of information under this section does not contravene section 206 below (restriction on disclosure of information).
(2) Before section 30A of the WIA there is inserted—
Further functions of Authority
Duty to consult Council
30ZA (1) It shall be the duty of the Authority to consult the Council in relation to the exercise of each of its functions, except where—
(a) the Council has indicated to the Authority (whether specifically or generally) that it does not wish to be consulted; or
(b) the Authority considers that it would be clearly inappropriate to consult the Council.
(2) That duty is in addition to any duty on the Authority to consult the Council which is provided for elsewhere.
Copies of notices
30ZB Where the Authority is required by any provision of this Act to publish a notice or any other document, it shall send a copy of the document to the Council.
After section 27G of the WIA (which is inserted by section 43) there is inserted—
Provision of information to the Council
27H (1) The Council may direct—
(a) the Authority;
(b) a company holding an appointment under Chapter 1 of this Part; or
(c) a licensed water supplier,
to supply to it, in such form as it may reasonably specify, such information specified or described in the direction as it may require for the purpose of exercising its functions.
(2) A body to whom a direction under this section is given shall, if the information specified or described in the direction is in its possession, comply with the direction as soon as reasonably practicable.
(3) Before giving a direction under this section and in specifying the form in which any information is to be supplied, the Council shall have regard to the desirability of minimising the costs, or any other detriment, to the body to whom the direction is given.
(4) If a body to whom a direction under this section is given fails to comply with the direction it shall, if so required by the Council, give notice to the Council of the reasons for its failure.
Publication of notice of reasons
27I (1) Subject to the following provisions of this section, the Council may publish a notice given to it under section 27H(4) above.
(2) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be published under subsection (1) above unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.
(3) Information relating to a particular individual or body may be published if—
(a) that individual or body has consented to the publication;
(b) it is information that is available to the public from some other source; or
(c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.
(4) Before deciding to publish any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—
(a) consult that individual or body; and
(b) have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its publication;
and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.
(5) The Council shall not in the exercise of its function under this section publish any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.
(6) In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.
(7) The publication by the Council of information under this section does not contravene section 206 below (restriction on disclosure of information).
Provision of information by the Council
27J (1) Any of—
(a) the Authority;
(b) the Secretary of State; or
(c) the Assembly,
may direct the Council to supply to him or it, in such form as he or it may reasonably specify, such information specified or described in the direction as he or it may require for the purpose of exercising his or its functions.
(2) The Council shall, if the information specified or described in the direction is in its possession, comply with a direction under this section as soon as reasonably practicable.
(3) Where the Council fails to comply with a direction given under subsection (1) above it must give to the person who gave the direction notice of its reason for the failure, and that person may publish that notice in such manner as he considers appropriate.
(4) A person publishing a notice under this section shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.
Sections 27H to 27J: supplementary
27K (1) The Secretary of State may make regulations prescribing—
(a) descriptions of information which a person to whom a direction is given under section 27H or 27J above may refuse to supply; or
(b) circumstances in which such a person may refuse to comply with a direction given under either of those sections.
(2) The Council may, if no person is prescribed for the purpose under subsection (3) below, refer a failure by a company holding an appointment or a licensed water supplier to comply with a direction under section 27H above to the Authority.
(3) The Secretary of State may make regulations for the purpose of enabling a failure to comply with a direction under section 27H or 27J above to be referred by the person who gave the direction to such person (other than the Authority) as may be prescribed by the regulations.
(4) A person to whom such a failure is referred (whether under subsection (2) above or regulations under subsection (3) above) shall—
(a) consider any representations made by either party;
(b) determine whether the person failing to comply with the direction is entitled to refuse to do so, and, if not, order him to comply with the direction; and
(c) give notice of his determination and any order under paragraph (b), with reasons, to both parties.
(5) The duty of a company holding an appointment and a licensed water supplier to comply with an order under this section shall be enforceable by the Authority under section 18 above.
(6) A notice under subsection (4) above may be published by either party to the reference.
(7) Subsections (2) to (7) of section 27I above apply to the publication of a notice under this section as they apply to the publication of a notice given to the Council under section 27H(4) above.
45 Provision of statistical information to consumers etc
(1) After section 38A of the WIA there is inserted—
Publication of statistical information about complaints
38B (1) It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to complaints made by consumers about any matter relating to the activities of water undertakers or licensed water suppliers and the handling of such complaints.
(2) In subsection (1) above, “complaints” includes complaints made directly to water undertakers or licensed water suppliers (or anyone carrying on activities on their behalf) and complaints to the Authority, the Council, the Assembly or the Secretary of State.
(2) After section 95A of the WIA there is inserted—
Publication of statistical information about complaints
95B (1) It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to complaints made by consumers about any matter relating to the activities of sewerage undertakers and the handling of such complaints.
(2) In subsection (1) above, “complaints” includes complaints made directly to sewerage undertakers (or anyone carrying on activities on their behalf) and complaints to the Authority, the Council, the Assembly or the Secretary of State.
(1) For section 29 of the WIA (duties of customer service committees) there is substituted—
Consumer complaints
29 (1) This section applies to a complaint which any person (“the complainant”) has against a relevant undertaker or a licensed water supplier in relation to any matter connected with the functions of that undertaker or the services provided by that licensed water supplier.
(2) Where a complaint to which this section applies (other than one appearing to the Council to be frivolous or vexatious) is referred to the Council by or on behalf of the complainant, the Council shall (subject to subsections (3) and (8) below) investigate the complaint for the purpose of determining whether it is appropriate to take any action under subsection (9) below.
(3) Where it appears to the Council that the complaint is one the Authority would be required to investigate under section 181 below, the Council shall, instead of investigating the matter to which it relates, refer the complaint to the Authority.
(4) Where it appears to the Council that the complaint relates to a matter in respect of which a function under section 18 or 22A above is or may be exercisable by any person, the Council shall (unless it considers that that person already has notice of the matter) refer the matter to that person.
(5) Where it appears to the Council that the complaint relates to a matter which constitutes or might constitute an offence, the Council shall refer the matter—
(a) to the Assembly, if the matter relates to a relevant undertaker whose area is wholly or mainly in Wales or to services provided by a licensed water supplier using the supply system of a water undertaker whose area is wholly or mainly in Wales; or
(b) to the Secretary of State, in any other case.
(6) Where it appears to the Council that the complaint relates to a matter which constitutes a dispute of a kind which can be referred to the Authority for determination under any provision of this Act, the Council shall, if the complainant consents, refer the matter to the Authority.
(7) A referral under subsection (6) above shall have effect for the purposes of section 30A below as if it were a referral by the complainant of a dispute for determination by the Authority.
(8) The Council is not required to investigate any matter if it appears to the Council that—
(a) it is unlikely that the complaint could be resolved by action taken by the relevant undertaker or the licensed water supplier;
(b) the relevant undertaker or the licensed water supplier has not been given a reasonable opportunity to deal with the complaint; or
(c) in a case mentioned in subsection (4) or (5) above or (where the complainant does not consent to the matter being referred to the Authority) subsection (6) above, it is inappropriate to do so.
(9) Where it appears to the Council to be appropriate to do so with a view to assisting in reaching a satisfactory resolution of a complaint referred to it under this section, the Council shall make representations on behalf of the complainant to the relevant undertaker or the licensed water supplier about anything to which the complaint relates.
(10) After investigating a complaint the Council may make a report to the Authority, the Secretary of State or the Assembly.
(11) A report under subsection (10) above may include information about—
(a) any representations made by the Council under subsection (9) above; and
(b) the response of the relevant undertaker or the licensed water supplier to the complaint or any such representations.
(12) No report under subsection (10) above or information about a complaint referred to the Council under this section, from which the complainant may be identified, shall be published or disclosed by the Council, the Authority, the Secretary of State or the Assembly in the exercise of any power under this Act without the consent of the complainant.
(13) Where a representation made to the Authority, the Secretary of State or the Assembly about any matter (other than a representation appearing to the person to whom it is made to be frivolous or vexatious) appears to that person—
(a) to be about a matter which is or amounts to a complaint to which this section applies (other than one which, in the case of the Authority, it is its duty to investigate under section 181 below); and
(b) to have been made by or on behalf of the complainant,
that person shall refer the matter to the Council.
(2) Section 30 of the WIA (duties of Director with respect to complaints) shall cease to have effect.
After section 29 of the WIA there is inserted—
Power of Council to investigate other matters
29A (1) The Council may investigate any matter (not being a matter which it is its duty to investigate under this Part) which appears to it to be a matter relating to the interests of consumers.
(2) Before undertaking an investigation under this section the Council shall consult the Authority, the Secretary of State and the Assembly.
(3) Where the Council has investigated a matter under this section it may make a report on that matter to the Authority, the Secretary of State, the OFT, the Assembly or any other public authority whose functions appear to the Council to be exercisable in relation to that matter.
(4) Subject to subsection (5) below, the Council may—
(a) send a report on any matter investigated under this section to any person who appears to the Council to have an interest in that matter; and
(b) publish any such report in such manner as the Council thinks appropriate.
(5) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate)—
(a) shall not be included in a report which is to be sent to any person under subsection (4)(a) above, unless one or more of paragraphs (a) to (c) of subsection (6) below applies; and
(b) shall be excluded from any such report which is to be published under subsection (4)(b) above, unless one or more of paragraphs (a) to (c) of subsection (7) below applies.
(6) Information relating to a particular individual or body may be included in a report to be sent under subsection (4)(a) above if—
(a) that individual or body has consented to the disclosure;
(b) it is information that is available to the public from some other source; or
(c) it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.
(7) Information relating to a particular individual or body may be included in a report to be published under subsection (4)(b) above if—
(a) that individual or body has consented to the publication;
(b) it is information that is available to the public from some other source; or
(c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.
(8) Before deciding to include in such a report any information relating to a particular individual or body in pursuance of subsection (6)(c) or (7)(c) above, the Council shall—
(a) consult that individual or body; and
(b) have regard to any opinion expressed by the Authority as to the application of subsection (6)(c) or (7)(c) above to the information or as to the desirability or otherwise of its inclusion in the report;
and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.
(9) The Council shall not include in any report to be sent under subsection (4)(a) above or published under subsection (4)(b) above any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.
(10) In considering whether information relates to any matter as mentioned in subsection (9) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.
(1) After section 22 of the WIA there is inserted—
Financial penalties
Penalties
22A (1) Where the Authority is satisfied—
(a) in the case of any company holding an appointment under Chapter 1 of this Part, that the company—
(i) has contravened or is contravening any condition of the appointment;
(ii) has caused or contributed to, or is causing or contributing to, a contravention by a company holding a licence under Chapter 1A of this Part of any condition of the licence; or
(iii) has failed or is failing to achieve any standard of performance prescribed under section 38(2) or 95(2) below; or
(b) in the case of any company holding a licence under Chapter 1A of this Part, that the company—
(i) has contravened or is contravening any condition of the licence; or
(ii) has caused or contributed to, or is causing or contributing to, a contravention by a company holding an appointment under Chapter 1 of this Part of any condition of the appointment,
the Authority may, subject to section 22C below, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.
(2) Where the Authority, the Secretary of State or the Assembly is satisfied—
(a) in the case of any company holding an appointment under Chapter 1 of this Part, that the company—
(i) has contravened or is contravening any statutory or other requirement which is enforceable under section 18 above and in relation to which he or it is the enforcement authority; or
(ii) has caused or contributed to, or is causing or contributing to, a contravention by a company holding a licence under Chapter 1A of this Part of any such requirement; or
(b) in the case of any company holding a licence under Chapter 1A of this Part, that the company—
(i) has contravened or is contravening any statutory or other requirement which is enforceable under section 18 above and in relation to which he or it is the enforcement authority; or
(ii) has caused or contributed to, or is causing or contributing to, a contravention by a company holding an appointment under Chapter 1 of this Part of any such requirement,
he or it may, subject to section 22C below, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.
(3) In a case in which—
(a) subsection (1) above applies by virtue of paragraph (a)(ii) or (b)(ii) of that subsection, or
(b) subsection (2) above applies by virtue of paragraph (a)(ii) or (b)(ii) of that subsection,
references in the following provisions of this section and sections 22B and 22C below to a contravention include references to causing or contributing to a contravention.
(4) Before imposing a penalty on a company under subsection (1) or (2) above the Authority, the Secretary of State or the Assembly (the “enforcement authority”) shall give notice—
(a) stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;
(b) setting out the condition, requirement or standard of performance in question;
(c) specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of a penalty and the amount of the penalty proposed; and
(d) specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(5) Before varying any proposal stated in a notice under subsection (4)(a) above the enforcement authority shall give notice—
(a) setting out the proposed variation and the reasons for it; and
(b) specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(6) As soon as practicable after imposing a penalty, the enforcement authority shall give notice—
(a) stating that he or it has imposed a penalty on the company and its amount;
(b) setting out the condition, requirement or standard of performance in question;
(c) specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of the penalty and its amount; and
(d) specifying a date, no earlier than the end of the period of forty-two days from the date of service of the notice on the company, by which the penalty is required to be paid.
(7) The company may, within twenty-one days of the date of service on it of a notice under subsection (6) above, make an application to the enforcement authority for him or it to specify different dates by which different portions of the penalty are to be paid.
(8) Any notice required to be given under this section shall be given—
(a) by publishing the notice in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;
(b) by serving a copy of the notice on the company;
(c) by serving a copy of the notice on the Council; and
(d) where the notice is given by the Secretary of State or the Assembly, by serving a copy of the notice on the Authority.
(9) Any sums received by the enforcement authority by way of penalty under this section shall be paid into the Consolidated Fund.
(10) The power of the enforcement authority to impose a penalty under this section is not exercisable in respect of any contravention or failure before the commencement of this section.
(11) No penalty imposed by an enforcement authority under this section may exceed 10% of the turnover of the company (determined in accordance with provisions specified in an order made, after consulting the Assembly, by the Secretary of State).
(12) The power of the Secretary of State to make an order under subsection (11) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(13) An enforcement authority shall not impose a penalty under this section where it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.
Statement of policy with respect to penalties
22B (1) Each enforcement authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.
(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure an enforcement authority shall have regard to his or its statement of policy most recently published at the time when the contravention or failure occurred.
(3) An enforcement authority may revise his or its statement of policy and where he or it does so shall publish the revised statement.
(4) Publication under this section shall be in such manner as the enforcement 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.
(5) An enforcement authority shall undertake such consultation as he or it considers appropriate when preparing or revising his or its statement of policy.
Time limits on the imposition of financial penalties
22C (1) Where no final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure later than the end of the period of twelve months from the time of the contravention or failure, unless before the end of that period—
(a) the notice under section 22A(4) above relating to the penalty is served on the company under section 22A(8) above; or
(b) a notice relating to the contravention or failure is served on the company under section 203(2) below.
(2) Where a final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 22A(4) above was served on the company under section 22A(8) above—
(a) within three months from the confirmation of the provisional order or the making of the final order; or
(b) where the provisional order is not confirmed, within six months from the making of the provisional order.
Interest and payment of instalments
22D (1) If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838.
(2) If an application is made under subsection (7) of section 22A above in relation to a penalty, the penalty is not required to be paid until the application has been determined.
(3) If the enforcement authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the enforcement authority under that subsection, the enforcement authority may where he or it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.
Appeals
22E (1) If the company on which a penalty is imposed is aggrieved by—
(a) the imposition of the penalty;
(b) the amount of the penalty; or
(c) the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,
the company may make an application to the court under this section.
(2) An application under subsection (1) above must be made—
(a) within forty-two days from the date of service on the company of a notice under section 22A(6) above; or
(b) where the application relates to a decision of an enforcement authority on an application by the company under section 22A(7) above, within forty-two days from the date the company is notified of the decision.
(3) On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4) below, the court—
(a) may quash the penalty;
(b) may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or
(c) in the case of an application under subsection (1)(c) above, may substitute for the date or dates imposed by the enforcement authority an alternative date or dates.
(4) The grounds falling within this subsection are—
(a) that the imposition of the penalty was not within the power of the enforcement authority under section 22A above;
(b) that any of the requirements of subsections (4) to (6) or (8) of section 22A above have not been complied with in relation to the imposition of the penalty and the interests of the company have been substantially prejudiced by the non-compliance; or
(c) that it was unreasonable of the enforcement authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.
(5) If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined.
(6) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.
(7) Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.
(8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.
(9) In this section “the court” means the High Court.
Recovery of penalties
22F Where a penalty imposed under section 22A(1) or (2) above, or any portion of it, has not been paid by the date on which it is required to be paid and—
(a) no application relating to the penalty has been made under section 22E above during the period within which such an application can be made; or
(b) an application has been made under that section and determined,
the enforcement authority may recover from the company, as a civil debt due to him or it, any of the penalty and any interest which has not been paid.
(2) In section 195 of the WIA (keeping of a register), in subsection (2), the “and” at the end of paragraph (d) is omitted, and after paragraph (e) there is inserted—
(f) every penalty imposed under section 22A(1) or (2) above and every notice under section 22A(6) above;
.
(1) The WIA is amended as follows.
(2) In section 18 (orders for securing compliance with certain provisions)—
(a) in subsection (1)(b), for “has contravened any such condition or requirement and is likely to do so again” there is substituted “ is likely to contravene any such condition or requirement ”,
(b) for subsection (4)(a)(ii) there is substituted—
(ii) is likely to contravene any such condition or requirement;
.
(3) In section 20 (procedure for orders made under section 18), in subsections (1)(c) and (4)(b), for “twenty-eight” there is substituted “ twenty-one ”.
(4) Subsection (3) does not have effect in relation to—
(a) a provisional order which has been made before the commencement of that subsection, or
(b) a final order in respect of which notice has been given under section 20(1) of the WIA before the commencement of that subsection.
50 Links between directors' pay and standards of performance
After section 35 of the WIA there is inserted—
Disclosure of arrangements for remuneration
Remuneration and standards of performance
35A (1) This section applies to any company holding an appointment under Chapter 1 of this Part.
(2) As soon as reasonably practicable after the end of each financial year of the company it must make a statement to the Authority—
(a) disclosing whether or not remuneration has been paid or become due during that financial year to the directors of the company as a result of arrangements falling within subsection (3) below; and
(b) where such remuneration has been paid or become due, describing the arrangements and the remuneration.
(3) Arrangements fall within this subsection if they are arrangements for linking the remuneration of the directors of the company to standards of performance in connection with the carrying out by the company of the functions of a relevant undertaker.
(4) A description under subsection (2)(b) above must include in particular—
(a) a statement of when the arrangements were made;
(b) a description of the standards of performance in question;
(c) an explanation of the means by which the standards of performance are assessed; and
(d) an explanation of how the remuneration was calculated.
(5) The statement required by subsection (2) above must also state—
(a) whether or not there are in force in respect of the financial year during which the statement is made arrangements falling within subsection (3) above; or
(b) if not, whether the company intends that such arrangements will be in force at some time during that financial year,
and if there are, or it is intended that there will be, such arrangements in force the statement must describe those arrangements.
(6) A description under subsection (5) above must—
(a) include in particular the matters listed in subsection (4)(a), (b) and (c) above; and
(b) where the arrangements described are different from any arrangements described under subsection (2)(b) above, state the likely effect of those differences on the remuneration of each director of the company.
(7) The statement required by subsection (2) above must be made to the Authority in such manner as may be required by the Authority.
(8) The statement required by subsection (2) above—
(a) must be published by the company making the statement in such manner as it reasonably considers will secure adequate publicity for it; and
(b) may be published by the Authority in such manner as it may consider appropriate.
(9) The duty of a company under this section applies in respect of any person who has at any time been a director of the company.
(10) In this section—
“remuneration” in relation to a director of a company—
means any form of payment, consideration or other benefit (including pension benefit), paid or due to or in respect of the director; and
includes remuneration in respect of any of his services while a director of the company;
“standards of performance”, in relation to any company, include any standards which are—
set by or under any conditions of the company’s appointment under Chapter 1 of this Part;
contained in or prescribed by regulations made under section 38(1)(b) or (2) or section 95(1)(b) or (2) below; or
set or agreed to by the company.
(11) Any requirement imposed by this section shall be treated as a statutory requirement enforceable under section 18 above by the Authority.
After section 195 of the WIA there is inserted—
Reasons for decisions
195A (1) This section applies to the following decisions of the Authority, the Secretary of State or the Assembly, namely—
(a) the modification of the conditions of an appointment under Chapter 1 of Part 2 of this Act or the variation of the area to which an appointment relates;
(b) the modification of the conditions of a licence under Chapter 1A of that Part;
(c) the termination of such an appointment or the revocation of such a licence;
(d) the giving of any directions or consent in pursuance of a condition included in such an appointment by virtue of section 12(1) above or in such a licence by virtue of section 17G(3)(a) or (b) above;
(e) the determination of a question referred in pursuance of a condition included in such an appointment by virtue of section 12(2) above or in such a licence by virtue of section 17G(3)(c) above;
(f) the making of a determination under section 17E or 66D(1) above; and
(g) the making of a final enforcement order, the making or confirmation of a provisional enforcement order or the revocation of a final order or of a provisional order which has been confirmed.
(2) As soon as reasonably practicable after making such a decision the Authority, the Secretary of State or the Assembly shall publish a notice stating the reasons for the decision in such manner as it considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be interested.
(3) A person publishing a notice under subsection (2) above shall serve a copy on the company holding the appointment or licence to which the decision relates.
(4) A person preparing a notice under subsection (2) above shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.
(5) This section does not apply in relation to a decision of the Authority resulting in any provision which the Authority was directed under section 195(3) above not to enter in the register required to be kept under that section.
(1) This section imposes duties on each of the following—
(a) the Secretary of State,
(b) the Assembly,
(c) the Environment Agency, ...
(ca) the Natural Resources Body for Wales, and
(d) the Water Services Regulation Authority.
(2) It is the duty of each of those mentioned in subsection (1) to make arrangements with each of the others with a view to promoting, in the case of each pair of them—
(a) co-operation and the exchange of information between them, and
(b) consistency of treatment of matters which affect both of them.
(3) That duty relates only—
(a) in the case of the Water Services Regulation Authority, to its functions under the WIA relating to the regulation of water and sewerage undertakers and licensed water suppliers,
(b) in the case of the Secretary of State and the Assembly, to their functions of the description referred to in paragraph (a), and to their functions under the WIA relating to the quality of water supplied by water undertakers and licensed water suppliers,
(c) in the case of the Environment Agency and the Natural Resources Body for Wales, to their functions concerning water resources and water pollution so far as they relate to water and sewerage undertakers and licensed water suppliers.
(4) As soon as practicable after agreement is reached on any arrangements required by this section, the parties must prepare a memorandum setting them out.
(5) The parties to any such arrangements must keep them under review.
(6) As soon as practicable after agreement is reached on any changes to arrangements under this section, the parties must revise their memorandum.
(7) Parties to arrangements required by this section must send a copy of their memorandum (and any revised memorandum) to each person mentioned in subsection (1) who is not a party to the arrangements set out in it.
(8) The Secretary of State must lay before each House of Parliament a copy of every memorandum (and revised memorandum) under this section.
53 Specialist members of the Competition Commission
(1) In section 104(1) of the Utilities Act 2000 (c. 27) (appointment of members of the Competition Commission)—
(a) the “or” at the end of paragraph (a) is omitted, and
(b) after paragraph (b) there is inserted
; or
(c) section 12, 14, 16A, 17K or 17P of the Water Industry Act 1991.
.
(2) The persons who are, immediately before the commencement of subsection (1), members of the Competition Commission by virtue of appointments made under section 14(8) of the WIA shall continue as members of the Commission and their appointments shall be treated as having been made under section 104 of the Utilities Act 2000.
(3) Section 14(8) and (8A) of the WIA (which are superseded by this section) shall cease to have effect.
(4) The provision made by this section does not affect any group which has been selected, before the commencement of subsection (1), to perform functions of the Commission in relation to any reference under or by virtue of section 14 of the WIA.
54 Determination references under section 12 of the WIA
(1) Section 12 of the WIA (determinations under conditions of appointment) is amended as follows.
(2) After subsection (3) there is inserted—
(3A) For the purposes of subsection (3) above, where—
(a) the question or matter referred to the Commission concerns the review of a price control imposed on the company holding the appointment; and
(b) the Commission is to decide to what extent it is reasonable to take into account in its determination costs incurred or borne by the company in connection with the reference,
the Commission shall also have regard to the extent to which, in its view, its determination is likely to support the company’s (rather than the Authority's) claims in relation to the question or matter referred to it.
(3B) Subsections (4) and (5) of section 14, and sections 16A and 16B, below apply to references to the Competition Commission under this section as they apply to references under section 14.
(3C) A report of the Competition Commission on a reference under this section—
(a) shall be made to the Authority; and
(b) shall include definite conclusions on the questions or other matters comprised in the reference, together with such an account of their reasons for those conclusions as, in the opinion of the Competition Commission, is expedient for facilitating a proper understanding of those questions or other matters and of their conclusions,
and subsections (5) and (6) of section 15 below apply to such a report as they apply to a report on a reference under section 14.
(3) Subsections (3)(b)(i), (4) and (5) shall cease to have effect.
(1) The WIA is amended as follows.
(2) In section 14(5) (modification references to the Competition Commission)—
(a) after “this section” there is inserted “ or in carrying out functions under section 16A below ”,
(b) after “the investigation” there is inserted “ or the carrying out of those functions ”, and
(c) after “such investigation” there is inserted “ or such functions ”.
(3) In section 16 (modification of conditions of appointment following report of Competition Commission), after subsection (4) there is inserted—
(4A) After considering any representations or objections made in response to proposals set out in a notice under subsection (3) above, the Authority shall give notice to the Competition Commission—
(a) setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and
(b) stating the reasons for making the modifications.
(4B) The Authority shall include with the notice under subsection (4A) above a copy of any representations or objections received in relation to the notice under subsection (3) above.
(4C) If the period of four weeks from the date on which the notice under subsection (4A) above is given elapses without a direction under section 16A(1)(a) below having been given to it, the Authority shall—
(a) make the modifications set out in the notice; or
(b) if a direction under section 16A(1)(b) below has been given, make the modifications which are not specified in the direction.
(4) After section 16 there is inserted—
Commission’s power of veto following report
16A (1) The Competition Commission (in this section referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under section 16(4A) above, direct the Authority—
(a) not to make the modifications set out in that notice; or
(b) not to make such of the modifications as may be specified in the direction;
and the Authority shall comply with any such direction.
(2) The Secretary of State may, within the period of four weeks after the date on which the Commission is given a notice under section 16(4A) above and on the application of the Commission, direct that the period for giving a direction under subsection (1) above (and, accordingly, the period mentioned in section 16(4C) above) shall be extended by fourteen days.
(3) The power to give a direction under subsection (1) above may only be exercised in respect of such of the modifications set out in the notice under section 16(4A)(a) above as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.
(4) If the Commission gives a direction under subsection (1) above, it—
(a) shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and
(b) shall itself make such modifications as appear to it to be requisite for the purpose of remedying or preventing—
(i) if the direction was given under subsection (1)(a) above, the adverse effects specified in the report as effects which could be remedied or prevented by modifications;
(ii) if the direction was given under subsection (1)(b) above, such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 16(4C)(b) above.
(5) In exercising its power under subsection (4)(b) above, the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a company’s appointment.
(6) Before making modifications under subsection (4)(b) above the Commission shall give notice—
(a) stating that it proposes to make the modifications and setting them out;
(b) stating the reason why it proposes to make them;
(c) specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(7) A notice under subsection (4)(a) or (6) above shall be given—
(a) by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and
(b) by serving a copy on the Authority and the company whose conditions of appointment it is proposed should be modified.
(8) The Commission may not make any modification under this section which the Authority could not make under section 16 above.
(9) After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.
(10) This section does not apply to the modification of the conditions of a company’s appointment following a report of the Commission made before the commencement of section 55 of the Water Act 2003.
Commission’s power of veto following report: supplementary
16B (1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (9) of section 16A above.
(2) In giving any notice under subsection (4)(a) or (6) of section 16A above, or publishing any notice under subsection (9) of that section, the Commission must have regard to the following considerations before disclosing any information.
(3) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.
(4) The second consideration is the need to exclude from disclosure (so far as practicable)—
(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or
(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.
(5) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) above is necessary for the purposes of the notice.
(6) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8) below, for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under section 16A above, as they apply for the purposes of any investigations on references under that Part—
(a) section 109 (attendance of witnesses and production of documents etc);
(b) section 110 (enforcement of powers under section 109: general);
(c) section 111 (penalties);
(d) section 112 (penalties: main procedural requirements);
(e) section 113 (payments and interest by instalments);
(f) section 114 (appeals in relation to penalties);
(g) section 115 (recovery of penalties); and
(h) section 116 (statement of policy).
(7) Section 110 shall, in its application by virtue of subsection (6) above, have effect as if—
(a) subsection (2) were omitted;
(b) in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “ the publication by the Commission of a notice under section 16A(9) of the Water Industry Act 1991 in connection with the reference concerned or, if no direction has been given by the Commission under section 16A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period ”; and
(c) in subsection (9) the words from “or section” to “section 65(3))” were omitted.
(8) Section 111(5)(b) shall, in its application by virtue of subsection (6) above, have effect as if for sub-paragraph (ii) there were substituted—
(ii) if earlier, the day on which a notice is published by the Commission under section 16A(9) of the Water Industry Act 1991 in connection with the reference concerned or, if no direction is given by the Commission under section 16A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.
(9) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (6) above, have effect in relation to those sections as applied by virtue of that subsection.
(10) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.
57 The Chief Inspector of Drinking Water and the Drinking Water Inspectorate
(1) Section 86 of the WIA (which provides for the appointment of technical assessors for the enforcement of water quality) is amended as provided in subsections (2) to (8).
(2) In subsection (1), the words “as technical assessors” are omitted.
(3) After subsection (1) there is inserted—
(1A) Subject to subsection (1B) below, the Secretary of State shall designate one such person as the Chief Inspector of Drinking Water.
(1B) If the function of the Secretary of State under subsection (1) above is transferred to any extent to the Assembly—
(a) subject to paragraph (b) below, the Assembly may designate one such person appointed by it as the Chief Inspector of Drinking Water for Wales; but
(b) if the person designated by the Assembly is the same as the person designated by the Secretary of State as the Chief Inspector of Drinking Water, he shall be known as such in both capacities.
(4) In subsection (2), for “A person” there is substituted “ An inspector ”.
(5) In subsection (3)(a) and (b), for “a person” there is substituted “ an inspector ”.
(6) In subsection (4), for “person”, wherever it appears, there is substituted “ inspector ”.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) After subsection (6) there is added—
(7) Proceedings by the Secretary of State for an offence under this section or in relation to the quality and sufficiency of water supplied using a water undertaker’s supply system may be instituted and carried on in the name of the Chief Inspector of Drinking Water.
(8) Any such proceedings by the Assembly may be instituted and carried on in the name of the Chief Inspector of Drinking Water for Wales, if there is one (or, if subsection (1B)(b) above applies, in the name of the Chief Inspector of Drinking Water).
(9) In this section “inspector” means the Chief Inspector of Drinking Water or any other person appointed under subsection (1) above.
(9) In section 219 of the WIA (general interpretation), after subsection (9) there is added—
(10) If the Assembly designates a person as Chief Inspector of Drinking Water for Wales under section 86(1B) above, references in this Act to the Chief Inspector of Drinking Water, as respects anything to be done in relation to him, shall be taken as references to the person designated as the Chief Inspector of Drinking Water by the Secretary of State and also the person designated by the Assembly as the Chief Inspector of Drinking Water for Wales.
(10) Subsection (7) does not have effect in relation to any offence committed before the commencement of that subsection.
(1) The WIA is amended as follows.
(2) For section 87 (fluoridation of water supplies at request of health authorities) there is substituted—
Fluoridation of water supplies at request of relevant authorities
87 (1) If requested in writing to do so by a relevant authority, a water undertaker shall enter into arrangements with the relevant authority to increase the fluoride content of the water supplied by that undertaker to premises within the area specified in the arrangements.
(2) But a water undertaker shall not be required by subsection (1) above to enter into any such arrangements until an indemnity with respect to the arrangements has been given by virtue of section 90 below—
(a) to the water undertaker; and
(b) to any licensed water supplier which is entitled to one.
(3) In this section and the following provisions of this Chapter—
(a) references to a relevant authority—
(i) in relation to areas in England, are to a Strategic Health Authority established under section 8 of the National Health Service Act 1977;
(ii) in relation to areas in Wales, are to the Assembly; and
(b) references to water supplied by a water undertaker are to water supplied (whether by a water undertaker or a licensed water supplier) to premises using the supply system of that undertaker.
(4) The area specified in arrangements under this section may be—
(a) in relation to England, the whole or any part of the area of the Strategic Health Authority in question;
(b) in relation to Wales, such area comprising the whole or any part of Wales as the Assembly may determine.
(5) The arrangements shall be on such terms as may be agreed between the relevant authority and the water undertaker or, in the absence of agreement, determined in accordance with section 87B below.
(6) Those terms shall include provision—
(a) requiring the relevant authority to meet the reasonable capital and operating costs incurred by the water undertaker in giving effect to the arrangements;
(b) specifying circumstances in which the requirement to increase the fluoride content may be temporarily suspended; and
(c) for the variation of the arrangements at the request of the relevant authority.
(7) The relevant authority shall consult the Authority in relation to the terms to be included in any arrangements under this section (in particular, terms which affect the operation of the water undertaker’s supply system).
(8) If two or more relevant authorities request a particular water undertaker to enter into arrangements in respect of adjoining areas—
(a) the authorities shall co-operate with each other so as to secure that the arrangements (taken together) are operable and efficient; and
(b) if suitable terms are not agreed for all the arrangements, a combined reference may be made by the relevant authorities under section 87B below to enable the terms of each set of arrangements to be determined so that they are consistent.
(9) If a relevant authority requests a water undertaker to vary arrangements, the authority shall co-operate with any relevant authority for an adjoining area which has entered into arrangements with the same water undertaker so as to secure that following the variation the arrangements (taken together) will be operable and efficient.
(10) If suitable terms are not agreed for a variation mentioned in subsection (9), a combined reference may be made by the relevant authorities under section 87B below to enable the terms of the variation to be determined so that (following the variation) both sets of arrangements are consistent.
(11) Before carrying out the consultation required by subsection (1) of section 89 below in relation to a step mentioned in paragraph (a), (b) or (c) of subsection (2) of that section, a relevant authority shall consult the water undertaker in question as to whether the arrangements which would result from taking that step would be operable and efficient (or, where it is proposed to terminate the arrangements, as to whether it would be reasonably practicable to do so).
Target concentration of fluoride
87A (1) Arrangements under section 87(1) above shall include provision for securing that, so far as reasonably practicable, the concentration of fluoride in the water supplied to premises in the specified area is maintained at the general target concentration of one milligram per litre.
(2) But the arrangements may provide for the concentration in the specified area (or any part of it) to be lower than that if the relevant authority considers that it is not reasonably practicable to achieve the general target concentration in the specified area (or that part of it).
(3) Any such lower concentration must still be as high as is reasonably practicable in the circumstances.
(4) If, in relation to any area (“area A”), an order under section 88A(1) below specifies a general target concentration lower than that for which any arrangements effective there provide (or, by the previous operation of this subsection, are taken to provide), the arrangements shall have effect from the coming into force of the order as if they provided for the general target concentration specified in the order (subject to the operation again of subsections (2) and (3) above).
(5) If the result of the operation of subsection (4) above in relation to arrangements in area A is that in an area adjoining area A (“area B”) it is not reasonably practicable to maintain the concentration of fluoride in the water supplied by virtue of arrangements made in area B with the same water undertaker, the order shall be taken to extend also to area B so far as those arrangements are concerned, and subsection (4) above shall apply accordingly.
(6) An order under section 88A(1) below which in relation to any area specifies a general target concentration higher than that for which any arrangements effective there provide (or are taken to provide by virtue of subsection (4) or (5) above) does not have effect to increase the concentration for which the arrangements provide (or are taken to provide).
(7) In this section, “specified area” means the area specified in arrangements under section 87(1) above.
Fluoridation arrangements: determination of terms
87B (1) This section applies if a relevant authority and a water undertaker fail to agree—
(a) the terms of arrangements requested by the relevant authority pursuant to subsection (1) of section 87 above; or
(b) a variation in the terms of those arrangements following a request by the relevant authority pursuant to subsection (6)(c) of that section.
(2) In relation to areas in England (except where subsection (4) below applies)—
(a) the relevant authority may refer the matter to the Secretary of State for determination;
(b) following such a reference, the Secretary of State may—
(i) determine the terms of the arrangements as he sees fit; or
(ii) refer the matter for determination by such other person as he considers appropriate; and
(c) the determination of the Secretary of State or, as the case may be, the other person shall be final.
(3) In relation to areas in Wales (except where subsection (4) below applies)—
(a) the Assembly may—
(i) determine the terms of the arrangements itself as it sees fit; or
(ii) refer the matter for determination by such other person as it considers appropriate; and
(b) the determination of the Assembly or, as the case may be, the other person shall be final.
(4) Where the Assembly is one of the relevant authorities which has made a combined reference under section 87(8)(b) or (10) above—
(a) the terms of the arrangements shall be determined by a person appointed by the Secretary of State and the Assembly acting jointly; and
(b) the determination of that person shall be final.
(5) Following determination under this section of the terms to be included in any arrangements—
(a) the relevant authority shall give notice of the determination to the water undertaker in question; and
(b) the undertaker shall be deemed to have entered into the arrangements under section 87(1) above on the terms determined under this section with effect from the day after the date of the notice.
(6) References in this Chapter to arrangements entered into under section 87(1) above shall include arrangements deemed to have been entered into under that section by virtue of subsection (5)(b) above.
Fluoridation arrangements: compliance
87C (1) It shall be the duty of each water undertaker to comply with any arrangements entered into by it under section 87(1) above.
(2) Where, pursuant to any such arrangements, the fluoride content of any water is increased, the increase may be effected only by the addition of one or more of the following compounds of fluorine—
hexafluorosilicic acid (H2SiF6)
disodium hexafluorosilicate (Na2SiF6).
(3) Subject to subsection (4) below, water to which fluoride has been added pursuant to any such arrangements entered into by a water undertaker (with a view to its supply in an area) may be supplied by that or any other undertaker to premises in any other area (whether or not that other area is the subject of arrangements under section 87(1) above).
(4) Subsection (3) above applies if (and only if) the undertaker or undertakers concerned consider that it is necessary for the water to be supplied in the other area—
(a) for the purpose of dealing with any serious deficiency in supply; or
(b) in connection with the carrying out of any works (including cleaning and maintenance) by the undertaker concerned or, as the case may be, by the undertakers concerned, or by a licensed water supplier supplying water using its or their supply system.
(5) In this section—
(a) the reference, in subsection (3) above, to water to which fluoride has been added pursuant to arrangements includes a reference to water to which fluoride has been added by Scottish Water in exercise of the power conferred by section 1 of the Water (Fluoridation) Act 1985; and
(b) in relation to a supply of such water by a water undertaker, the reference, in subsection (4) above, to the water undertakers concerned shall have effect as references to the water undertaker and Scottish Water.
(6) In subsection (4) above, “serious deficiency in supply” means any existing or threatened serious deficiency in the supply of water (whether in quantity or quality) caused by an exceptional lack of rain or by any accident or unforeseen circumstances.
(7) Arrangements entered into under section 87(1) above shall remain in force until the relevant authority, after giving reasonable notice to the water undertaker, terminates them.
(8) But (except where it is reasonably practicable to terminate the arrangements separately), arrangements to which section 87(8)(a) or (b) applied may only be terminated by the relevant authorities acting jointly.
(3) In section 88 (power to vary permitted fluoridation agents), in subsection (1), for “87(4)” there is substituted “ 87C(2) ”.
(4) After section 88 there is inserted—
Power to vary target concentration of fluoride
88A (1) The appropriate authority may by order made by statutory instrument provide that section 87A(1) above is to have effect as if for “one milligram per litre” there were substituted a lower concentration specified in the order.
(2) An order under subsection (1) above may make different provision for different geographical areas, or for some such areas and not others.
(3) A statutory instrument containing an order under subsection (1) above shall not be made by the Secretary of State (or by the Secretary of State and the Assembly acting jointly) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) In subsection (1) above “appropriate authority”—
(a) in relation to an area which is partly in England and partly in Wales, means the Secretary of State and the Assembly acting jointly;
(b) in relation to an area which is wholly in England, means the Secretary of State; and
(c) in relation to an area which is wholly in Wales, means the Assembly.
(5) An order amending or revoking an order under subsection (1) above made by virtue of subsection (4)(a) above must also be made by the Secretary of State and the Assembly acting jointly.
(5) For section 89 there is substituted—
Consultation
89 (1) Before taking any step mentioned in subsection (2) below, a relevant authority shall—
(a) consult and ascertain opinion in accordance with regulations made by the appropriate authority; and
(b) comply with the requirements set out in regulations made by the appropriate authority.
(2) The steps are—
(a) requesting a water undertaker to enter into arrangements under section 87(1) above;
(b) requesting a water undertaker to vary any such arrangements in, or except in, prescribed circumstances or cases;
(c) giving notice to a water undertaker under section 87C(7) above to terminate any such arrangements;
(d) maintaining any such arrangements in prescribed circumstances.
(3) Regulations—
(a) under paragraph (a) of subsection (1) above shall include provision about the process which relevant authorities are to follow for the purposes of that paragraph;
(b) under paragraph (b) of that subsection shall include provision about the requirements which must be satisfied (with respect to the outcome of that process or otherwise) before a step mentioned in subsection (2) above may be taken.
(4) Subsection (1) above shall not apply in relation to a proposal by a relevant authority to take the step mentioned in subsection (2)(c) above if the appropriate authority so directs by an instrument in writing (and such a direction may apply either generally or in relation to a particular proposal).
(5) In this section “appropriate authority”—
(a) in a case where two or more relevant authorities (one of which is the Assembly) propose to request a particular water undertaker to take a step mentioned in subsection (2)(a), (b) or (c) in respect of arrangements in adjoining areas, means the Secretary of State and the Assembly acting jointly;
(b) in relation to England (except in a case to which paragraph (a) applies), means the Secretary of State; and
(c) in relation to Wales (except in a case to which paragraph (a) applies), means the Assembly.
(6) For section 90 (indemnities in respect of fluoridation) there is substituted—
Indemnities in respect of fluoridation
90 (1) The Secretary of State may, with the consent of the Treasury, agree to indemnify any water undertaker in respect of liabilities which it may incur in complying with arrangements entered into by it pursuant to section 87(1) above.
(2) The Secretary of State may also, with the consent of the Treasury, agree to indemnify any licensed water supplier in respect of liabilities which it may incur—
(a) in supplying water to which fluoride has been added by a water undertaker by virtue of any such arrangements;
(b) (if the licensee is introducing water into the water undertaker’s supply system) in complying with any obligation imposed on it by the undertaker in consequence of the arrangements.
(3) The Secretary of State may by regulations make provision with respect to—
(a) the matters in respect of which an indemnity may be given under subsection (1) or (2) above;
(b) the form and terms of any such indemnity; and
(c) such ancillary matters as he sees fit.
Review of fluoridation
90A (1) A relevant authority which has entered into arrangements under section 87(1) above shall—
(a) monitor the effects of the arrangements on the health of persons living in the area specified in the arrangements; and
(b) in accordance with subsections (3) to (5) below publish reports containing an analysis of those effects.
(2) The relevant authority shall make available—
(a) any information collected by it for the purposes of subsection (1) above; or
(b) summaries of that information.
(3) The relevant authority shall publish a report under subsection (1)(b) above within the period of four years beginning with the date on which the arrangements come into force (unless section 91(1) below applies in relation to the arrangements).
(4) Where section 91(1) below applies in relation to the arrangements, the relevant authority shall publish a report under subsection (1)(b) above within the period of four years beginning with the date on which section 58 of the Water Act 2003 came into force.
(5) The relevant authority shall publish a further report under subsection (1)(b) above within each period of four years beginning with the date on which their last such report was published.
(6) This section ceases to apply in relation to any arrangements under section 87(1) above if those arrangements are terminated.
(7) For section 91 (pre-1985 fluoridation schemes) there is substituted—
Pre-1985 fluoridation schemes
91 (1) With effect from the appointed day, relevant pre-1985 arrangements shall be treated for the purposes of this Chapter as if they were arrangements entered into by the water undertaker in question with the relevant authority under section 87(1) above.
(2) The relevant authority may request such modifications to the arrangements as it considers necessary in order to give effect to subsection (1) above, for example to insert the terms mentioned in section 87(6) above.
(3) If the relevant authority and the water undertaker fail to agree the modifications requested by the authority—
(a) subsection (2), (3) or, as the case may be, (4) of section 87B above shall apply as if the parties had failed to agree the terms of arrangements requested under section 87(1) above; and
(b) following determination of the modifications—
(i) the relevant authority shall give notice of the determination to the water undertaker; and
(ii) the arrangements shall be deemed to have been modified as so determined with effect from the day after the date of the notice.
(4) Sections 87(11) and 89(1) above (which relate to consultation) shall not apply to the deemed entry into, and modification of, arrangements by virtue of this section.
(5) References in this Chapter to arrangements entered into under section 87(1) above shall include arrangements treated as entered into by a water undertaker by virtue of subsection (1) above.
(6) In this section—
“the appointed day” means the day on which section 58 of the Water Act 2003 comes into force; and
“relevant pre-1985 arrangements” means arrangements in pursuance of which a scheme for increasing the fluoride content of water was being operated by a water undertaker by virtue of paragraph 1 of Schedule 7 to this Act immediately before the appointed day.
(8) In section 213 (powers to make regulations), after subsection (1) there is inserted—
(1A) But on the occasion of the first exercise by the Secretary of State of the power to make regulations under each of sections 89 and 90 above, the instrument containing the regulations shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(1B) The power of the Assembly to make regulations under section 89 above shall be exercisable by statutory instrument.
(9) Schedule 7 (pre-1985 fluoridation schemes) shall cease to have effect.
(10) In section 1(7) of the Water (Fluoridation) Act 1985 (c. 63) (water fluoridated outwith Scotland), for the words from “by a water undertaker” to the end there is substituted
pursuant to arrangements—
(a) entered into under section 87(1) of the Water Industry Act 1991; or
(b) treated, for the purposes of Chapter 4 of Part 3 of that Act, as if entered into under that section.
.
(11) With effect from the commencement day, any relevant application shall have effect for the purposes of subsection (1) of section 87 of the WIA as a request made by a relevant authority under that subsection.
(12) Any other application made before the commencement day ceases to have effect on that day.
(13) In subsections (11) and (12)—
“commencement day” means the day when this section comes into force, and
“relevant application” means an application which—
was made before the passing of this Act,
has not been withdrawn, and
has not been rejected in writing by the water undertaker to which it was made.
(14) In subsections (12) and (13) “application” means an application made under section 87 of the WIA as it was in force at the time when the application was made (and includes an application made under section 1 of the Water (Fluoridation) Act 1985 and having effect as if made under section 87 of the WIA).
59 Charges for services provided with the help of an undertaker
(1) Section 150 of the WIA (fixing maximum charges for services provided with the help of undertakers' services) is amended as follows.
(2) After subsection (2) there is inserted—
(2A) An order under this section may require the person providing the supplies or services to furnish the person who is provided with them with such information as may be specified or described in the order.
(2B) An order containing such a requirement may also provide that, in the event of the failure of the person providing the supplies or services to furnish that information, the maximum charges he is entitled to recover from the person provided with them in respect of those supplies or services shall be such as may be fixed by the order.
(3) In subsection (5), for the words from “the amount of the excess” to the end there is substituted—
(a) the amount of the excess; and
(b) if the order so provides, interest on that amount at a rate specified or described in the order,
shall be recoverable by that person from the person to whom he paid the charge.
After section 37 of the WIA there is inserted—
Water resources management plans: preparation and review
37A (1) It shall be the duty of each water undertaker to prepare and maintain a water resources management plan.
(2) A water resources management plan is a plan for how the water undertaker will manage and develop water resources so as to be able, and continue to be able, to meet its obligations under this Part.
(3) A water resources management plan shall address in particular—
(a) the water undertaker’s estimate of the quantities of water required to meet those obligations;
(b) the measures which the water undertaker intends to take or continue for the purpose set out in subsection (2) above (also taking into account for that purpose the introduction of water into the undertaker’s supply system by or on behalf of licensed water suppliers);
(c) the likely sequence and timing for implementing those measures; and
(d) such other matters as the Secretary of State may specify in directions.
(4) The procedure for preparing a water resources management plan (including a revised plan) is set out in section 37B below.
(5) Before each anniversary of the date when its plan (or revised plan) was last published, the water undertaker shall —
(a) review its plan; and
(b) send a statement of the conclusions of its review to the Secretary of State.
(6) The water undertaker shall prepare a revised plan in each of the following cases—
(a) following conclusion of its annual review, if the review indicated a material change of circumstances;
(b) if directed to do so by the Secretary of State;
(c) in any event, not later than the end of the period of five years beginning with the date when the plan (or revised plan) was last published,
and shall follow the procedure in section 37B below (whether or not the revised plan prepared by the undertaker includes any proposed alterations to the previous plan).
(7) The Secretary of State may give directions specifying—
(a) the form which a water resources management plan must take;
(b) the planning period to which a water resources management plan must relate.
(8) Before preparing its water resources management plan (including a revised plan), the water undertaker shall consult—
(a) the Environment Agency;
(b) the Authority;
(c) the Secretary of State; and
(d) any licensed water supplier which supplies water to premises in the undertaker’s area via the undertaker’s supply system.
(9) The Secretary of State shall consult the Environment Agency before giving a direction under subsection (6)(b) above.
(10) In this section, in relation to a water resources management plan, “published” means published in accordance with section 37B(8)(a) below.
Water resources management plans: publication and representations
37B (1) A water undertaker shall—
(a) send a draft water resources management plan to the Secretary of State;
(b) state whether it appears to the undertaker that any information contained in that plan is or might be commercially confidential (as regards itself or another person); and
(c) give the Secretary of State the name of each such other person and his address for service of a notice under subsection (2)(a) below.
(2) If the water undertaker states that it so appears in relation to any such information, the Secretary of State shall—
(a) if the person to whom or to whose business the information relates is not the water undertaker, give that person notice that the information is included in a draft water resources management plan and, unless subsection (10) below applies, is required to be published under this section; and
(b) give each person (including the water undertaker) to whom any such information relates a reasonable opportunity—
(i) of objecting to the publication of the information relating to him on the ground that it is commercially confidential; and
(ii) of making representations to the Secretary of State for the purpose of justifying any such objection,
and shall determine, taking any objections and representations under paragraph (b) into account, whether the information is or is not commercially confidential.
(3) A water undertaker shall—
(a) (subject to subsection (10) below) publish the draft water resources management plan in the prescribed way or, if no way is prescribed, in a way calculated to bring it to the attention of persons likely to be affected by it;
(b) publish with it a statement—
(i) whether any information has been excluded from the published draft plan by virtue of subsection (10) below and, if it has, the general nature of that information; and
(ii) that any person may make representations in writing about the plan to the Secretary of State before the end of a period specified in the statement; and
(c) send a copy of the published draft plan and accompanying statement to such persons (if any) as may be prescribed.
(4) The Secretary of State shall send to the water undertaker a copy of any representations he receives following publication of the draft plan under subsection (3) above and shall give it a reasonable period of time within which to comment on the representations.
(5) The Secretary of State may in regulations prescribe how such representations and any comments by the water undertaker on them are to be dealt with.
(6) Regulations under subsection (5) above—
(a) may provide for the Secretary of State to cause an inquiry or other hearing to be held in connection with the draft water resources management plan; and
(b) if they do so provide, may provide for subsections (2) to (5) of section 250 of the Local Government Act 1972 (local inquiries: evidence and costs) to apply with prescribed modifications to such an inquiry or hearing as they apply to inquiries under that section.
(7) The Secretary of State may direct a water undertaker that its water resources management plan must differ from the draft sent to him under subsection (1) above in ways specified in his direction, and (subject to subsection (9) below) it shall be the duty of the water undertaker to comply with the direction.
(8) The water undertaker shall—
(a) (subject to subsection (10) below) publish the water resources management plan in the prescribed way or, if no way is prescribed, in a way calculated to bring it to the attention of persons likely to be affected by it; and
(b) publish with it a statement whether any information has been excluded from the published plan by virtue of subsection (10) below and, if it has, the general nature of that information.
(9) If the water undertaker considers that publishing a water resources management plan complying with a direction under subsection (7) above would mean including in the published plan any information (other than any information in relation to which the Secretary of State has already made a determination under subsection (2) above) which might be commercially confidential (as regards itself or another person)—
(a) the water undertaker shall send the Secretary of State a notice saying so, and giving the Secretary of State the name of any such other person and his address for service of a notice under subsection (2)(a) above as applied by paragraph (b) below; and
(b) subsection (2) above shall apply in relation to that information as it applies in relation to the information referred to there;
and the Secretary of State may either confirm his direction under subsection (7) above (which is to be treated as a new direction under subsection (7)) or revoke the previous such direction (or the previous one so treated) and give a new one.
(10) The published version of a draft water resources management plan published under subsection (3)(a) above, and a water resources management plan published under subsection (8)(a) above, shall exclude any information which the Secretary of State—
(a) has determined under subsection (2) above (or that subsection as applied by subsection (9) above) is commercially confidential; or
(b) directs the water undertaker to exclude on the ground that it appears to him that its publication would be contrary to the interests of national security.
(11) Any steps to be taken by a water undertaker under this section shall be completed by such time or within such period as the Secretary of State may direct.
Water resources management plans: provision of information
37C (1) It shall be the duty of each licensed water supplier to provide the water undertaker with such information as the water undertaker may reasonably request for the purposes of preparing or revising its water resources management plan.
(2) In the event of any dispute between a water undertaker and a licensed water supplier as to the reasonableness of the water undertaker’s request under subsection (1) above, either party may refer the matter for determination by the Secretary of State, and any such determination shall be final.
(3) For the purposes of paragraph (b) of section 37B(1) above, the water undertaker shall identify in its statement under that paragraph any information—
(a) provided by a licensed water supplier pursuant to subsection (1) above; and
(b) contained in the water undertaker’s draft water resources management plan,
which the licensed water supplier has (at the time of providing it to the water undertaker) specifically identified as being, in the licensed water supplier’s opinion, commercially confidential.
(4) The water undertaker shall not use any unpublished information save for the purpose of facilitating the performance by it of any of the duties imposed on it by or under this Act, any of the other consolidation Acts or the Water Act 1989.
(5) In subsection (4) above—
(a) “unpublished information” means confidential information which—
(i) is provided to the water undertaker by a licensed water supplier under this section;
(ii) relates to the affairs of any individual or to any particular business; and
(iii) by virtue of section 37B above, is not published;
(b) “the other consolidation Acts” has the same meaning as in section 206 below.
Water resources management plans: supplementary
37D (1) Directions given under section 37A or 37B above may be—
(a) general directions applying to all water undertakers; or
(b) directions applying only to one or more water undertakers specified in the directions,
and shall be given by an instrument in writing.
(2) It shall be the duty of each water undertaker to whom directions apply to comply with the directions.
(3) The duties of—
(a) a water undertaker under sections 37A to 37C above and under this section; and
(b) a licensed water supplier under section 37C above,
shall be enforceable by the Secretary of State under section 18 above.
After section 39A of the WIA there is inserted—
Drought plans: preparation and review
39B (1) It shall be the duty of each water undertaker to prepare and maintain a drought plan.
(2) A drought plan is a plan for how the water undertaker will continue, during a period of drought, to discharge its duties to supply adequate quantities of wholesome water, with as little recourse as reasonably possible to drought orders or drought permits under Chapter 3 of Part 2 of the Water Resources Act 1991.
(3) The duties referred to in subsection (2) above include in particular those imposed under or by virtue of—
(a) section 37 above;
(b) sections 67 to 69 below.
(4) A drought plan shall address, in particular, the following matters—
(a) what measures the water undertaker might need to take to restrain the demand for water within its area;
(b) what measures the water undertaker might need to take to obtain extra water from other sources (also taking into account for that purpose the introduction of water into the undertaker’s supply system by or on behalf of licensed water suppliers);
(c) how the water undertaker will monitor the effects of the drought and of the measures taken under the drought plan;
(d) such other matters as the Secretary of State may specify in directions.
(5) Section 37B above (water resources management plans: publication and representations), including any power in that section to make regulations or give directions, applies in relation to drought plans (including revised plans) as it applies in relation to water resources management plans.
(6) Each water undertaker shall review (or further review) its drought plan and prepare a revised plan in each of the following cases—
(a) if there is a material change of circumstances;
(b) if directed to do so by the Secretary of State;
(c) in any event, not later than the end of the period of three years beginning with the date when the plan (or revised plan) was last published in accordance with section 37B(8)(a) above as applied by subsection (5) above,
and shall follow the procedure in section 37B above as applied by subsection (5) above (whether or not the revised plan prepared by the undertaker includes any proposed alterations to the previous plan).
(7) Before preparing its drought plan (including a revised plan), the water undertaker shall consult—
(a) the Environment Agency;
(b) the Authority;
(c) the Secretary of State; and
(d) any licensed water supplier which supplies water to premises in the undertaker’s area via the undertaker’s supply system.
(8) The Secretary of State may give directions specifying the form which a drought plan must take.
(9) Directions given under this section (including directions given under section 37B above as applied by subsection (5) above) may be—
(a) general directions applying to all water undertakers; or
(b) directions applying only to one or more water undertakers specified in the directions,
and shall be given by an instrument in writing.
(10) It shall be the duty of each water undertaker to whom directions apply to comply with the directions.
(11) The Secretary of State shall consult the Environment Agency before giving a direction under subsection (6)(b) above.
(12) The duty of a water undertaker under this section shall be enforceable by the Secretary of State under section 18 above.
Drought plans: provision of information
39C (1) It shall be the duty of each licensed water supplier to provide the water undertaker with such information as the water undertaker may reasonably request for the purposes of preparing or revising its drought plan.
(2) In the event of any dispute between a water undertaker and a licensed water supplier as to the reasonableness of the water undertaker’s request under subsection (1) above, either party may refer the matter for determination by the Secretary of State, and any such determination shall be final.
(3) For the purposes of paragraph (b) of section 37B(1) above as applied by section 39B(5) above, the water undertaker shall identify in its statement under that paragraph any information—
(a) provided by a licensed water supplier pursuant to subsection (1) above; and
(b) contained in the water undertaker’s draft drought plan,
which the licensed water supplier has (at the time of providing it to the water undertaker) specifically identified as being, in the licensed water supplier’s opinion, commercially confidential.
(4) The water undertaker shall not use any unpublished information save for the purpose of facilitating the performance by it of any of the duties imposed on it by or under this Act, any of the other consolidation Acts or the Water Act 1989.
(5) In subsection (4) above—
(a) “unpublished information” means confidential information which—
(i) is provided to the water undertaker by a licensed water supplier under this section;
(ii) relates to the affairs of any individual or to any particular business; and
(iii) by virtue of section 37B above as applied by section 39B(5) above, is not published;
(b) “the other consolidation Acts” has the same meaning as in section 206 below.
(6) The duties of a licensed water supplier and a water undertaker under this section shall be enforceable by the Secretary of State under section 18 above.
(1) In section 77 of the WRA (provisions of drought order with respect to abstractions and discharges), subsection (4) is omitted.
(2) In section 79 of the WRA (compensation and charges where drought order made), after subsection (3) there is added—
(4) Where a water undertaker makes an application for a drought order, the Agency may recover from the water undertaker any expenses it incurs (whether of a revenue or capital nature)—
(a) in connection with any local inquiry held in respect of the application;
(b) in the exercise of the Agency’s functions so far as their exercise is attributable to the application and (if the order is made) to the order,
in so far as those expenses have not been recovered (whether from the water undertaker or not) under or by virtue of any other enactment.
(5) Sections 125 to 129 below shall not apply in respect of any charges which may be made under subsection (4) above.
(3) In section 79A of the WRA (drought permits)—
(a) subsection (8) is omitted, and
(b) after subsection (8) there is inserted—
(8A) Where a water undertaker makes an application for a drought permit, the Agency may recover from the water undertaker any expenses it incurs (whether of a revenue or capital nature) in the exercise of its functions so far as their exercise is attributable to—
(a) the application;
(b) (if the permit is issued) the permit,
in so far as those expenses have not been recovered (whether from the water undertaker or not) under or by virtue of any other enactment.
(8B) Sections 125 to 129 below shall not apply in respect of any charges which may be made under subsection (8A) above.
In Schedule 8 to the WRA (proceedings on applications for drought orders), in paragraph 2, after sub-paragraph (6) there is added—
(7) For the purposes of subsection (2) of section 53 of the 1995 Act (which applies subsections (2) to (5) of section 250 of the Local Government Act 1972 to inquiries in connection with functions of or in relation to the Agency), a local inquiry held under this paragraph with respect to an application by a water undertaker for a drought order, if it would not otherwise fall within paragraph (a) or (b) of that subsection, is to be treated as one which falls within paragraph (b).
(1) The Environment Act 1995 (c. 25) is amended as follows.
(2) After section 18 there is inserted—
Power to revoke local flood defence schemes
18A (1) The Secretary of State may by order made by statutory instrument revoke any local flood defence scheme.
(2) The power to make an order under this section shall include power to make such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.
(3) The provision which may be made under subsection (2) above includes provision altering—
(a) the total number of members of the regional flood defence committee in whose area the local flood defence district created by the scheme was situated; and
(b) the total number of such members to be appointed by the constituent councils of that committee,
and subsections (7) and (8) of section 16 of this Act shall apply in relation to so much of an order under this section as is made by virtue of this subsection as they apply in relation to an order under subsection (5) of that section.
(4) Paragraphs 2 to 6 of Schedule 4 to this Act, apart from paragraph 3(3), apply in relation to an order under this section as they apply in relation to an order under that Schedule, reading references there to the relevant Minister as references to the Secretary of State.
(3) In section 17 (local flood defence schemes, etc), in subsection (3), for “section 18” there is substituted “ sections 18 and 18A ”.
67 Membership of regional flood defence committees in Wales
After section 16 of the Environment Act 1995 there is inserted—
Power to alter composition of regional flood defence committees in Wales
16A (1) This section applies in relation to any regional flood defence committee which satisfies (or, upon the coming into force of an order made under Schedule 4 to this Act, will satisfy) both of the conditions in subsection (2) below (a “Welsh committee”).
(2) The conditions are—
(a) the whole or the greater part of the committee’s area is in Wales; and
(b) no local flood defence scheme is in force in relation to the area of the committee.
(3) The National Assembly for Wales may by order made by statutory instrument make provision determining—
(a) the total number of members of a Welsh committee; and
(b) the method of selection and appointment of the chairman and other members of the committee (including who is to appoint them).
(4) An order under subsection (3) above may—
(a) apply either to Welsh committees generally or to a particular Welsh committee;
(b) include such supplemental, consequential and transitional provision as the National Assembly for Wales considers appropriate.
(5) In relation to a Welsh committee whose area is not wholly in Wales—
(a) the power to make an order under subsection (3) above may be exercised only with the agreement of the Secretary of State; and
(b) a statutory instrument containing an order under that subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) An order under subsection (3) above shall not be considered local in nature for the purposes of section 58(6) of the Government of Wales Act 1998 (definition of “Assembly general subordinate legislation”).
(7) Section 15 above (or, where the order is being made in conjunction with an order under Schedule 4 to this Act, that Schedule) shall not apply for the purposes of making an order under subsection (3) above.
Effect of order under section 16A
16B (1) Sections 15 and 16 above and section 18A(3) below shall not apply to a regional flood defence committee in respect of which an order under section 16A above is in force.
(2) In relation to any such committee, section 18 below shall have effect as if—
(a) paragraph (b) of subsection (4) read “other members appointed in accordance with and subject to the terms of the local flood defence scheme”; and
(b) paragraph (c) of subsection (4), and subsection (5), were omitted.
(3) In relation to any such committee whose membership does not include any member appointed by or on behalf of a constituent council, Schedule 5 to this Act shall have effect as if—
(a) in paragraph 1(1), the words “other than those appointed by or on behalf of one or more constituent councils” were omitted;
(b) sub-paragraphs (2), (3) and (4) of paragraph 1 were omitted; and
(c) paragraphs 2 and 9 were omitted.
(1) Paragraph 1 of Schedule 4 to the Environment Act 1995 (c. 25) (which confers power to alter the areas of regional flood defence committees) is amended as follows.
(2) In sub-paragraph (1)—
(a) the “or” at the end of paragraph (a) is omitted, and
(b) after paragraph (b) there is inserted—
(c) establish a new regional flood defence committee for such area as may be specified in the order (other than by providing for the amalgamation of the area of any two or more such committees); or
(d) abolish a regional flood defence committee.
(3) In sub-paragraph (4)—
(a) after “committees” there is inserted “ or otherwise establishing a new regional flood defence committee ”,
(b) in paragraph (a), after “amalgamated” there is inserted “ or new ”.
(4) In sub-paragraph (5), the “and” at the end of paragraph (b) is omitted, and after that paragraph there is inserted—
(ba) in relation to the establishment or abolition of a regional flood defence committee for an area the whole of which is in Wales, the National Assembly for Wales;
(bb) in relation to the establishment or abolition of a regional flood defence committee for an area any part (but not the whole) of which is in Wales, the Secretary of State and the National Assembly for Wales acting jointly; and
.
69 Grants for drainage works and flood warning systems
(1) Sections 147 to 149 of the WRA (which relate to grants for drainage works and flood warning systems) shall cease to have effect.
(2) For subsection (4) of section 165 of the WRA (general powers to carry out flood defence and drainage works) there is substituted—
(4) The Agency may by agreement with any person carry out, improve or maintain, at that person’s expense, any drainage works which that person is entitled to carry out, improve or maintain; but for the purposes of this subsection the expense to be borne by that person shall not include such part (if any) of the amount of any grant made under section 47 of the Environment Act 1995 (grants to the new Agencies) as the Agency decides (subject to any terms on which the grant is made) to allocate for the works in question.
(3) For subsection (4) of section 166 of the WRA (power to carry out works for purpose of providing flood warning system) there is substituted—
(4) In this section—
“flood warning system” means any system whereby, for the purpose of providing warning of any danger of flooding, information with respect to—
(a) rainfall, as measured at a particular place within a particular period; or
(b) the level or flow of any inland water, or part of an inland water, at a particular time; or
(c) other matters appearing to the Agency to be relevant for that purpose,
is obtained and transmitted, whether automatically or otherwise, with or without provision for carrying out calculations based on such information and for transmitting the results of those calculations;
“inland water” means any of the following in any part of Great Britain, that is to say—
(a) any river, stream or other watercourse, whether natural or artificial and whether tidal or not;
(b) any lake or pond, whether natural or artificial, and any reservoir or dock; and
(c) any channel, creek, bay, estuary or arm of the sea;
“rainfall” includes any fall of snow, hail or sleet.
(4) In the definition of “flood defence provisions” in subsection (1) of section 221 of the WRA (general interpretation), in paragraph (a)(ii), the words “147 to 149,” are omitted.
For section 201 of the WRA (power to require information with respect to abstraction) there is substituted—
Power to require information in respect of water resources functions
201 (1) Subject to subsection (2) below, the Secretary of State or the Agency may serve on any person a notice requiring that person to furnish him or, as the case may be, it, within a period or at times specified in the notice and in a form and manner so specified, with such information as is reasonably required by the Secretary of State or by the Agency for the purpose of carrying out any of his or, as the case may be, its water resources functions.
(2) The Secretary of State shall have power by regulations to make provision for restricting the information which may be required under subsection (1) above and for determining the form in which the information is to be so required.
(3) A person who fails without reasonable excuse to comply with the requirements of a notice served on him under this section shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.
(4) References in this section to the water resources functions of the Secretary of State or of the Agency are references to the functions of the Secretary of State or of the Agency under Part 2 of this Act or under any provisions not contained in that Part which are related water resources provisions in relation to Chapter 2 of that Part.
71 Extension of Environment Agency’s powers of entry
In section 169 of the WRA (powers of entry for enforcement purposes), for subsection (2) there is substituted—
(2) The powers conferred by subsection (1) above in relation to any premises shall include power, in order to obtain information for the purpose mentioned in subsection (1)(a) above—
(a) to carry out experimental borings or other works on those premises; and
(b) to install and keep monitoring and other apparatus there.
In section 6 of the Environment Act 1995 (c. 25) (general provisions with respect to water), in subsection (2)(b), after “Wales” there is inserted “ (including the efficient use of those resources) ”.
In section 6 of the Environment Act 1995 (general provisions with respect to water), in subsection (3), after paragraph (c) there is inserted “ except so much of those inland waters as are in England. ”.
74 Environment Agency to be enforcement authority under the Reservoirs Act 1975
(1) The Reservoirs Act 1975 (c. 23) is amended as follows—
(a) in subsection (1) of section 2 (registration of certain reservoirs and enforcement of Act, etc), for the words from “The local authorities” to “county boroughs” there is substituted “ The relevant authorities for purposes of this Act shall be, in England and Wales, the Environment Agency ”,
(b) in the following provisions of the Act, for “local authority”, in each place where it appears, there is substituted “ relevant authority ”
sections 2 and 3,
section 13,
sections 20 and 21,
sections 24 and 25,
section 27,
(c) in section 1 (ambit of Act, and interpretation), after subsection (4) there is inserted—
(4A) The “area” of the Environment Agency, in its capacity as a relevant authority for purposes of this Act, is the whole of England and Wales.
,
(d) in section 22(6) (institution of proceedings for an offence under the Act), for the words from “by any local authority” to “except by” there is substituted “ only by the Environment Agency or ”,
(e) in Schedule 1 (index of definitions), at the appropriate places there are inserted the following entries—
Area (in relation to the Environment Agency).................... | Section 1(4A)
Relevant authority.................... | Section 2(1)
.
(2) Each body which immediately before the date of commencement of subsection (1) (referred to in this section as the “commencement date”) is a local authority in England or Wales for the purposes of the Reservoirs Act 1975 (c. 23) shall, as soon as practicable after that date, give to the Environment Agency—
(a) the register maintained by the body under section 2(2) of that Act, and
(b) any other documents, records or other information in its possession which relate to the exercise of the body’s functions as an enforcement authority within the meaning of section 2(6) of that Act (referred to in this section as its “enforcement functions”).
(3) It shall be the duty of a body falling within subsection (2) to give to the Environment Agency all such assistance as the Environment Agency may reasonably require for the purposes of facilitating the taking over by the Environment Agency of the body’s enforcement functions.
(4) Nothing in this section affects the validity of anything done by or in relation to such a body in the exercise of its enforcement functions before the commencement date.
(5) There may be continued by or in relation to the Environment Agency anything (including legal proceedings) which relates to any of such a body’s enforcement functions and is in the process of being done by or in relation to the body immediately before the commencement date.
(6) Anything which was done by such a body for the purpose of or in connection with any of its enforcement functions and is in effect immediately before the commencement date shall have effect as if done by the Environment Agency.
75 Extension of enforcement authority’s reserve powers
(1) The Reservoirs Act 1975 is amended as follows.
(2) In section 8 (powers of enforcement authority in event of non-compliance with certain requirements), after subsection (3) there is inserted—
(3A) Where it appears to the enforcement authority that the report of an engineer acting under this section includes a recommendation as to measures to be taken in the interests of safety that has not been carried into effect as required by this section, the authority may by written notice served on the undertakers require them to carry the recommendation into effect within a time specified in the notice.
(3B) Where an enforcement authority propose to serve such a notice, the authority shall consult as to the time to be specified in the notice a civil engineer, being a qualified civil engineer for the purpose of inspecting and supervising the reservoir under this section.
(3) In section 15 (reserve powers), in subsection (2), after “section” there is inserted “ 8, ”.
(4) In section 17 (powers of entry), in subsection (1)(b), after “section”, in both places, there is inserted “ 8, ”.
(1) In section 15(4) of the Reservoirs Act 1975 (c. 23) (reserve powers of enforcement authorities) for “section 233 of the Local Government Act 1972” there is substituted “ section 123 of the Environment Act 1995 as it is applied by section 22A of this Act ”.
(2) After section 22 of that Act there is inserted—
Service of notices by the Environment Agency
22A Section 123 of the Environment Act 1995 (service of documents) applies to any document authorised or required by virtue of any provision of this Act to be served or given by the Environment Agency as if it were authorised or required to be served or given by or under that Act.
After section 12 of the Reservoirs Act 1975 there is inserted—
Flooding
Flood plans: large raised reservoirs
12A (1) The Secretary of State may, by written notice served on the undertakers in relation to a large raised reservoir, direct them to prepare a plan (a “flood plan”) setting out the action they would take in order to control or mitigate the effects of flooding likely to result from any escape of water from the reservoir.
(2) A direction may in particular—
(a) specify the matters to be included in the flood plan;
(b) require the flood plan to be prepared in accordance with such methods of technical or other analysis as may be specified by the Environment Agency;
(c) require the flood plan, or any information about the matters contained in it, to be given to the Environment Agency at such time or times as may be directed by that Agency or by the Secretary of State;
(d) require a copy of the flood plan to be sent to such persons as may be specified in the direction;
(e) require publication of the flood plan, in such manner as may be specified in the direction, for the purpose of bringing the matters contained in the flood plan to the attention of persons likely to be interested.
(3) Before giving a direction under this section the Secretary of State shall consult—
(a) the undertakers concerned;
(b) the Environment Agency;
(c) if the reservoir concerned is in England, the county council, metropolitan district council or London borough council in whose area the reservoir is situated;
(d) if the reservoir concerned is in Wales, the county council or county borough council in whose area the reservoir is situated;
(e) such persons appearing to the Secretary of State to represent the emergency services in the area where the reservoir is situated; and
(f) such other persons (if any) as the Secretary of State considers appropriate.
(4) If—
(a) the functions of the Secretary of State under the preceding provisions of this section are transferred to the National Assembly for Wales so far as exercisable in relation to Wales;
(b) no direction has been given by the Assembly under subsection (1) above in relation to a reservoir in Wales; and
(c) it appears to the Secretary of State that it is necessary or expedient in the interests of public safety in England that such a direction be given,
he may give a direction under that subsection in relation to that reservoir.
(5) This section is subject to section 12B below.
(1) In section 2 of the Reservoirs Act 1975 (c. 23) (registration of reservoirs and enforcement of Act, etc), after subsection (2) there is inserted—
(2A) If it appears to the Secretary of State that the inclusion of any information in the register maintained under subsection (2) above by the Environment Agency would be contrary to the interests of national security, he may direct the Agency not to include that information in the register.
(2) After section 12A of that Act (which is inserted by section 77 of this Act) there is inserted—
Flood plans and national security
12B (1) If it appears to the Secretary of State that in the interests of national security any person or class of persons referred to in any one or more of paragraphs (a) to (e) of section 12A(3) above should not be consulted about a proposed direction, he may treat that subsection as not referring to that person or to that class of person.
(2) In relation to any reservoir (whether a large raised reservoir or not, as the case may be) the Secretary of State may, by written notice served on the undertakers, require them not to publish, or not to publish except as specified in the notice—
(a) a flood plan prepared by them pursuant to a notice given under section 12A above;
(b) any corresponding plan prepared by them other than pursuant to such a notice,
and a notice under this subsection may also require the undertakers to withhold access to any such plan from any person except as specified in the notice.
(1) Section 22 of the Reservoirs Act 1975 (c. 23) (criminal liability of undertakers and their employees) is amended as follows.
(2) In subsection (1), the word “or” at the end of paragraph (a) is omitted, and at the end of paragraph (b) there is inserted
or
(c) the undertakers fail to comply with a direction under section 12A above;
.
(3) After subsection (1) there is inserted—
(1A) If the undertakers fail without reasonable excuse to comply with a notice under section 12B above, they shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or to both.