Subordinate Legislation Committee, 24 Sep 2002

Meeting date: Tuesday, September 24, 2002

Official Report 109KB pdf

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Delegated Powers Scrutiny

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Water Environment and Water Services (Scotland) Bill: Stage 1

The Water Environment and Water Services (Scotland) Bill has been introduced to transpose the EU water framework directive 2000/60/EC into domestic law. Part 1 of the bill provides for the establishment of a river basin planning system and contains a number of regulation-making powers that will enable new regulatory controls to be introduced over activities that can affect the water environment. That includes the introduction of controls, which are new to Scotland, over water abstraction.

The bill is big and has far-reaching consequences, and the directive is still being worked out at European level. Therefore, the Executive must take powers and perhaps do things in an order that it might not have wanted, but it has no option because there is an implementation date of 22 December 2003.

The Executive might appear to be premature in seeking to take relevant powers, but I do not think that it had any other choice. Is that okay?

Members indicated agreement.

Right. That forms the basis of anything that we might say about the matter. We understand the difficulties.

The bill is enabling in nature and confers powers on Scottish ministers to make orders and regulations on matters that the bill specifies. Part 1 is on the protection of the water environment. The Executive cannot be expected to know what will ultimately be required under the European directive. None of the powers appears to merit any procedure more onerous than annulment, which seems reasonable.

Members indicated agreement.

Ian Jenkins will comment on section 4(1), on the designation of river basin districts.

We have questions on the designation of river basin districts. We should ask the Executive how the ministers would exercise their designating powers. We are not clear about how Scotland would be divided into districts. Therefore, there is a question about where the boundaries would be drawn. There is also a question about whether the ministers have a statutory duty to send a copy of the designation order to the Scottish Environment Protection Agency.

There is a series of questions about the boundaries, the drawing of maps and the designation of river basin districts. We should take our legal adviser's advice and consider whether we should also include a requirement for consultation on orders made under section 4(1).

And affirmative legislation.

It might be argued that because the bill originates from a European measure there will have been lots of opportunity for prior consultation in the build-up to that level. However, experience has shown—for example, with our domestic legislation on national parks—that it is a good idea to let people have their say on local decisions.

There are two ways of doing that. Either Scotland can be one river basin area or we can have a series of river basin districts inside Scotland. I do not pretend to understand it all, but I can see where it would be important. I therefore think that we could ask the Executive the questions that Ian Jenkins posed.

Section 5 is headed "Characterisation of river basin districts". Some people might find that a little bit obscure. It means an environmental assessment and inventory of all the important factors in any given river basin district. I know that this is pedantic, but we are trying to make governance and government clearer to people, so perhaps we should start by using words that folk understand.

Plain English.

Yes. I just mention that in the passing.

Section 5 raises once again the question of prior consultation. We can wrap up this section together with section 4(1) when we ask the Executive if it is thinking about prior consultation.

Brian Fitzpatrick is here; I am pleased to see him. Brian, I took your name in vain.

Surely not.

I did.

Did you really? I would never do that to you.

I know. I heard.

Your name is always gilt to my lips.

We have reached section 6(1) of the Water Environment and Water Services (Scotland) Bill.

It is fascinating, is it not?

Section 6(1) is unexceptional.

Unexceptionable.

Section 7(1) is the same.

Section 7(5) is also okay.

It seems to be appropriate.

Section 8(3) is about monitoring methodology and monitoring strategy.

That section is okay.

Section 9(3) is about determining and achieving the environmental objectives.

There might be a case for prior consultation.

However, there is a sense in which such issues are driven by EC directives and consultation might raise false expectations of change. We should not make a fuss about it in this case.

No, but there is a different ethos surrounding the production of legislation or subordinate legislation when it derives from a European directive. There is nothing wrong with saying that the Executive has no other choice in the circumstances but, given the sensitive nature of what we are dealing with, it should be aware of the need for prior consultation. We are supposed to feed into the process as well as accepting it.

Wherever appropriate or practicable. I take Ian Jenkins's point, but I also take the convener's point about the point of principle. We could make that clear.

Legislation from Europe could also be ill defined.

We will not allow that to pass without comment, do not worry.

Section 10(2) is about the content of river basin management plans.

There is a discrepancy. Schedule 1 lists the various hallmarks of a management plan. I have concerns about the issue and we should ask the Executive what the position is.

Because there are some controversial items in the list, there is a possibility that some of the conditions have been omitted. That is a point of principle—we either have to take the lot or not. We will ask.

Where appropriate.

Section 19(1) is about general regulation-making powers in relation to river basin management planning.

That section is okay.

Section 20(1) is about the regulation of controlled activities. It enables Scottish ministers to make regulations for or in connection with regulating any activity for the purposes of protecting the water environment.

It has been suggested that there is a slightly odd provision in paragraph 17 of schedule 2, where there are regulations specifying rules. It might be simpler to have a rule-making power. It is no big deal, but we could ask the Executive to clarify the matter.

It will not change the essence of the provision. We can ask the Executive why it chose to go that way.

Subparagraph 20(2) of schedule 2 limits the fine that can be imposed to a maximum of £20,000. Customarily, any monetary amounts in primary legislation can be amended to reflect changes in the value of money. That seems obvious. However, it is not clear whether it is intended to use either of the ancillary powers in section 31 or 32 for that purpose.

I did not quite follow that. Is the concern that it would just be a form of Scottish statutory instrument that would be brought in to upgrade the legislation?

Yes. That is a power, but it is not mentioned in the bill.

I might be wrong, but if the test is necessity or expediency it might be a proper recognition of the offence to do the upgrade.

Will we ask for clarification? There is up to £20,000 involved, so it is reasonable to ask for clarification, is it not?

In that case, there is no harm in asking.

If the fine needs to be more to make people abide by the law, that is all well and good.

There is no specific power in the bill and that is why we are asking.

Other than that, section 20(1) is fine.

Section 22 is about remedial and restoration measures. This might be another section on which we could ask for clarification. The policy memorandum seems to indicate that the power will be exercisable by negative procedure except where it is used to amend primary legislation. That might be different from the terms of the bill, which appears to specify only negative procedure for the exercise of powers under section 22. It is not clear how the power in section 22 could be used to amend primary legislation.

We could write to the Executive to ask for clarification on that point.

Okay, we will ask for clarification.

Section 23(1) is about charges for water services. That is what everybody will be interested in, so we have to get it right.

Again, I think that we have to have prior consultation on water charges.

The member states have been allowed to use their discretion in the matter, for obvious reasons. Should there be a statutory requirement for prior consultation before the subordinate powers are exercised? What do members think? Perhaps that is one—

For the report.

Should that go into the report?

Members indicated agreement.

Section 24(1) deals with the power to give effect to Community obligations. There is a possibility that this wide power might be applicable to matters other than the management of water. Nobody suggests that any future Executive would use it to undermine the European Communities Act 1972, but it is perhaps incumbent on the committee to ask the Executive to tell us why it chose to include the power when it is open to such interpretation.

Is not such a power part of our reciprocal obligations if we find that, by our actings, the United Kingdom is in breach of Community law?

I do not know. Let us ask the Executive. If that is the case, it will say, "This is why we did that".

Could we tease out from the Executive whether more onerous provisions on related rights might be anticipated?

Yes. I am really glad that you are here this morning, Brian.

So am I.

Section 26(2) inserts subsection (3B) into section 1 of the Sewerage (Scotland) Act 1968 and deals with the power to make regulations regarding reasonable cost.

That seems okay.

Next is section 26(7), which inserts subsection (2C) into section 6 of the Water (Scotland) Act 1980.

That is the same as the previous section.

Sections 26(2) and 26(7) are similar to section 27(3), which inserts new section 14A(1) into the 1968 act. The new section deals with the power to make regulations specifying construction standards.

It is good to see a statutory requirement for consultation before the regulations are made.

Section 27(3) inserts new section 14B(3) into the 1968 act. The new section deals with the power to make regulations providing for takeover conditions and connection agreements.

I seem to have gone on ahead of you, convener; sorry.

Our convener is always ahead of the rest of the committee.

That section seems okay.

There seems to be no need for a statutory consultation requirement on new section 14B(3).

Section 28 inserts new section 23B(1) into the 1980 act and deals with the same powers as section 27(3).

Section 28 inserts new section 23C(2) into the 1980 act and deals with the power to make regulations providing for vesting conditions.

That seems fair.

Section 32 deals with ancillary provision. In the circumstances, we cannot argue with it.

Section 33(1) deals with commencement. There is a wee question about that. Once again, the Executive should know that it has our sympathies because of the timetabling of the European water framework directive. It is arguable that the bill ought to provide a cut-off date for the exercise of the power—in other words, when the bill is to be commenced.

We might ask the Executive to comment on whether it intends to implement the provisions bit by bit, or whether it will follow the big bang theory. We could ask for an indication of Executive thinking on that matter.

Okay. I am glad I am not on the subject committee because I would be asking much more searching questions.

Could you not even get on to that committee this week of all weeks?

No. There are other things for me to do. I am being called to arms on other matters.