47th Report, 2013 (Session 4): Legislative Consent Memorandum on the Water Bill

SP Paper 391 (Web Only)

DPLR/S4/13/R47

47th Report, 2013 (Session 4)

Legislative Consent Memorandum on the Water Bill

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(ii) [deleted]
(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Christian Allard
Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team: 

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Legislative Consent Memorandum on the Water Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 24 September 2013, the Committee considered the provisions in the Water Bill1 (“the Bill”) that confers powers to make subordinate legislation on the Scottish Ministers.

2. The Water Bill was introduced in the House of Commons on 27 June 2013. It is a UK Government Bill and is sponsored by the Secretary of State for Environment, Food and Rural Affairs, Owen Paterson.

3. A Legislative Consent Memorandum2 (“LCM”) has been lodged in relation to the Bill. The draft motion, which will be lodged by the Deputy First Minister, is:

“That the Parliament agrees that the relevant provisions of the Water Bill, introduced in the House of Commons on 27 June 2013, relating to the treatment of applications for a water supply or sewerage services licence or in connection with safeguarding the movement of fish through the border River Esk, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.”

4. This Legislative Consent Memorandum was considered by the Committee under Rule 9B3.6. The Committee is required to consider, and may report to the lead committee on, any provision in a Bill which is subject to a legislative consent memorandum which confers power on the Scottish Ministers to make subordinate legislation. As with bills passed by the Scottish Parliament, the Committee’s role is to consider whether it is appropriate in principle for the power to be delegated to the Scottish Ministers, whether the terms of the power are appropriately drawn and whether the level of scrutiny applied to the exercise of the power is appropriate.

Powers to make subordinate legislation

5. There are two clauses in the Bill which confer delegated powers upon the Scottish Ministers and they are discussed below.

Clause 7 – Arrangements with the Water Services Regulation Authority
Power conferred on: The Scottish Ministers
Exercised by: Order
Parliamentary Procedure: Negative

Background

6. Part 1 of the Water Bill amends the Water Industry Act 1991 by expanding and revising, for England and Wales only, the current water supply licensing regime and adding a sewerage licensing regime. It also makes provision designed to increase choice in the retail market in England and Wales in respect of water and sewerage suppliers.

7. The Water Services etc. (Scotland) Act 2005 (“the 2005 Act”) provides for the water and sewerage licensing regimes in Scotland. According to the LCM provided by the Scottish Government, one of the aims behind the Bill is to facilitate a cross-border retail market between England and Wales and Scotland.

8. To that end, clause 6 of the Bill confers power on the Secretary of State to make provision by regulations about treating applications for a water or sewerage services licence in Scotland as also being applications for the corresponding licence in England and Wales. Clause 6 also requires the Water Services Regulation Authority (the regulator for England and Wales) receiving an application for a water supply or sewerage licence to forward (at the request of the applicant) a copy of the application to the Water Industry Commission for Scotland (“the Commission”), for the purposes of the licensing regime in Scotland.

9. Clause 7 of the Bill makes mirror provision for Scotland. It confers power on the Scottish Ministers, by order, to make provision in Scotland about treating applications for a water supply or sewerage licence in England and Wales as also being an application for the corresponding licence in Scotland. Similarly, it requires the Commission receiving an application for a water or sewerage services licence in Scotland to forward (at the request of the applicant) a copy of the application to the Water Services Regulation Authority for the purposes of the English and Welsh licensing regime.

Delegated power

10. The Committee considered the power in new paragraph 1A(1) of Schedule 2 of the 2005 Act (inserted by clause 7(2) of the Bill) which enables the Scottish Ministers to make provision by order about treating applications for a water supply or sewerage licence in England and Wales as also being applications for a water or sewerage services licence in Scotland.

11. Schedule 2 of the 2005 Act concerns the procedure for granting water and sewerage services licences in Scotland. There is already a power in paragraph 1 which enables the Scottish Ministers, by order subject to negative procedure, to make provision about the making of applications to the Commission, and publication of such applications.

12. New paragraph 1A(2) provides that an order under paragraph 1A(1) may in particular make provision about the circumstances and conditions under which a water supply or sewerage licence application under the English and Welsh regime is to be treated as an application in Scotland, the time limits which apply and the processing of an application by the Commission. Such an order may also require an application under the English and Welsh regime which is forwarded to the Commission to include certain prescribed information, or to be accompanied by a prescribed fee (paragraph 1A(3)).

Comment

13. The power conferred enables the Scottish Ministers to treat an application for a water or sewerage licence in England and Wales as an application for a licence in Scotland, and to make administrative arrangements for processing such applications in Scotland.

14. The Bill on its face requires the water regulator in each jurisdiction to forward applications which meet certain conditions to the other regulator. The Committee considers that it would have been possible to set out the principle on the face of the Bill that the Commission in Scotland could treat English and Welsh applications as applications for a licence in Scotland, and leave the details of the procedure for processing such applications to subordinate legislation. Nonetheless, the Committee does not consider that this matter is so substantive as to make the choice of subordinate legislation inappropriate.

15. As regards parliamentary procedure, the choice of the negative procedure appears to be appropriate given the administrative nature of the amendments proposed. It is not thought that the Parliament would always wish the opportunity to debate the matter of treating water and sewerage licence applications from England and Wales as applications in Scotland. Negative procedure has been chosen for the equivalent regulation-making power conferred on the Secretary of State by clause 6. The Committee also notes that the existing power of the Scottish Ministers to make provision about the processing of applications for water or sewerage services licences (in paragraph 1 of Schedule 2 to the 2005 Act) is subject to negative procedure.

16. The Committee reports that it is content with the power conferred on the Scottish Ministers, and that it is subject to the negative procedure.

Clause 56(5) – Commencement

Power conferred on: The Scottish Ministers
Exercised by: Order
Parliamentary Procedure: Laid only

Delegated power

17. Clause 56(5) confers power on the Scottish Ministers to commence clause 7 of the Bill (discussed above) by order.

Comment

18. It is usual for the substantive provisions of a Bill to be commenced by order. The general provisions of the Water Bill will come into force when the Bill is passed, and the other clauses are subject to commencement by order by the Secretary of State, Welsh Ministers or the Scottish Ministers, as appropriate. It is appropriate for the Scottish Ministers to have power to commence clause 7 since that clause confers an order-making power on them.

19. Clause 56(5) does not permit the Scottish Ministers to include transitional, transitory or savings provision in the commencement order. However such provision could be made by the Secretary of State by order under clause 53 of the Bill if required, and again the Committee considers that a normal and appropriate approach to a power of this kind.

20. The power is a power to make subordinate legislation by Scottish statutory instrument and accordingly requires to be laid in the Scottish Parliament by virtue of section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (ILRA). It is not subject to further parliamentary procedure. Again this is consistent with the usual approach taken in Bills to commencement orders.

21. The Committee reports that it is content with the power conferred on the Scottish Ministers, and that it is subject only to the laying requirement in section 30(2) of ILRA.

22. The Committee therefore reports to the lead committee that it is content with the delegated power in the Bill.


Footnotes:

1 Water Bill available here: http://services.parliament.uk/bills/2013-14/water.html

2 Water Bill Legislative Consent Memorandum available here: http://www.scottish.parliament.uk/LegislativeConsentMemoranda/WaterBillLCM.pdf

Back to top

This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.