Plenary, 19 Jun 2003

Meeting date: Thursday, June 19, 2003

Official Report 752KB pdf

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Subordinate Legislation

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Water Industry (Scotland) Act 2002 (Consequential Provisions) Order 2003

The next item of business is a debate on motion S2M-144, in the name of Ross Finnie, on the draft Water Industry (Scotland) Act 2002 (Consequential Provisions) Order 2003. I invite members who want to participate in the debate to press their request-to-speak buttons now. I call Allan Wilson to speak to and move the motion. You have seven minutes, Mr Wilson—[Laughter.]—and we insist.

I will perhaps fill in the time with a bit of impromptu karaoke at the end. I assure you, Presiding Officer, that I do not feel obliged to use my full seven-minute allocation. Members will be pleased to learn that.

Today's debate concerns a consequential order that is made under section 69 of the Water Industry (Scotland) Act 2002. The 2002 act established Scottish Water as the provider of water and sewerage services on the public networks throughout Scotland. Scottish Water took over the functions of the previous three water and sewerage authorities. The consequential order that we debate today will ensure that future legislation properly reflects the creation of Scottish Water and the dissolution of the previous water and sewerage authorities. Therefore, the amendments in the consequential order are largely minor, technical ones that will not affect the substance of the legislation.

The amendments will replace references in several statutory provisions to the former water and sewerage authorities with references to Scottish Water. For example, the Housing (Scotland) Act 1988 is amended so that

"a water authority or a sewerage authority"

is replaced by a direct reference to "Scottish Water". Similar substitutions are made in other legislation, ranging from the Housing and Town Development (Scotland) Act 1957 to the Housing (Scotland) Act 2001. The order also amends secondary legislation, for example the Utilities Contracts Regulations 1996. Here too it replaces references to the previous water and sewerage authorities with references to Scottish Water.

Of more substance is the order's amendment to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. As is clear from section 47 of the 2002 act, and as members will recall from the debate at the time, Parliament intended that Scottish Water should have the power to make compulsory purchase orders. Unfortunately, the procedures established under the 1947 act were not applied to those provisions. That technical defect came to light only recently, when Scottish Water sought ministers' confirmation of a compulsory purchase order in connection with the proposed new treatment works at Milngavie.

The problem is essentially that the normal procedures for compulsory purchase as set out in the 1947 act have not been properly applied in the 2002 act. Because those procedures are not in place, ministers are unable to consider compulsory purchase orders proposed by Scottish Water under section 47 of the 2002 act. Our purpose in making this amendment to the legislation is to remedy the defect and give effect to the Parliament's original intention.

For the avoidance of doubt, will the minister state clearly that the changes relating to the 1947 act and compulsory purchase involve only a change in the organisation to which those powers are conferred, and that the powers themselves remain completely unchanged by the order?

Yes. I thought that I had said, "As is clear from section 47 of the 2002 act"—

It was just for the avoidance of doubt.

Okay. That always worries me.

It is not really about the powers. In fact, it is not at all about the powers. As is clear from section 47 of the 2002 act, Parliament intended that Scottish Water should have the power to make compulsory purchase orders. It is the procedures established under the 1947 act that were, incorrectly, not applied to the provisions of the 2002 act. Basically, a mistake was made at the time.

The order is subject to the affirmative procedure because it amends primary legislation. It therefore needs to be debated by the Parliament, even though the amendments are mainly of a minor, technical nature.

I move,

That the Parliament agrees that the draft Water Industry (Scotland) Act 2002 (Consequential Provisions) Order 2003 be approved.

It is a great pity that we were not able to consolidate this debate with the one that we had this morning. It appears to be about little more than dotting the i's and crossing the t's of the Water Industry (Scotland) Act 2002.

As far as I can see from the Executive note, the order does exactly what it says on the tin. First, it amends a number of bits and pieces of legislation that had referred to the former geographical area-based water and sewerage authorities, so that they now refer to Scottish Water. Ho-hum. Secondly, as the minister so eloquently explained, it modifies the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947; in other words, it deals with compulsory purchase.

When I first looked at the order, I thought that it could surely have been dealt with by the Subordinate Legislation Committee. Did the committee spot something that I had missed? One does get a bit paranoid in this Parliament. I had a look at the Subordinate Legislation Committee's first report of the session and, sure enough, there in a long list of other Scottish statutory instruments and draft SSIs was the draft Water Industry (Scotland) Act 2002 (Consequential Provisions) Order 2003. However, the very head of the report states:

"At its meeting on 17th June the Committee determined that the attention of the Parliament need not be drawn to the instruments listed in this report."

I therefore ask why the order is being brought to our attention in this debate when the instrument is perhaps more a "Whoops! We missed that bit" order that simply fixes an omission in the act, which Scottish Water needs to have in place to allow it to proceed with works at Mugdock reservoir. Lest anyone think that my brilliant prescience is such that I was able to discern all that from the statutory instrument, I must say that that is not made clear in the order's explanatory notes. I wish that the matter had been brought to the attention of the Subordinate Legislation Committee—surely the Executive was not trying to hide its incompetence under a bushel—but I had to rely on Des McNulty, who enlightened me in the tea room this morning as to what was actually behind the order.

Perhaps I am being just a little cynical—unlike me, I know—but I cannot help noticing that an extra half hour had to be shoe-horned into the start of this afternoon's business so that we could hear the First Minister's statement on the remit of the inquiry into the Holyrood building project. It is a pity that that debate had to be curtailed while this piece of bureaucratic tinkering has been allocated half as much time again. Here we are fixing an Executive oversight when we should be focusing on an issue on which the public want to see a debate and for which members would be queuing up to speak. Such a debate very much needs to be carried out in the public sight.

The Subordinate Legislation Committee's report gave a long list of SSIs and draft SSIs. I sincerely hope that this afternoon's proceedings are not a foretaste of what is to come, and that each and every one of those instruments will not need to be brought before the Parliament, clogging up business and taking up time that could be better spent.

I call Alex Johnstone. You have a minimum time of three minutes.

Only three! Not having had the benefit of having tea with Des McNulty earlier today, I have even less to say about the order than previous speakers. When I looked at the motion, I had questions about how we should deal with it, so I asked our research team, but they could not come up with any ideas either. It appears that the matter may more appropriately have been dealt with as an uncontested amendment during the passage of the Water Industry (Scotland) Act 2002.

However, harking back to what we said earlier today, the Tories have a number of concerns about the Scottish water industry, not least of which is that the industry is rather less efficient than it might have been. We want to continue discussing the future of the Scottish water industry and how it might deliver a more efficient and effective service in the long term. There is, however, little in the order that is in any way contestable or that would contribute to that ambition.

I, in turn, do not intend to say much on the order, which is a fairly technical measure to clear up legislation subsequent to the creation of Scottish Water.

However, the modification of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 is important. When Scottish Water exercises the powers of compulsory purchase granted to it by Parliament, it is important that it does so under the same procedures to which local authorities are subject. When public bodies exercise statutory rights as overwhelming or radical—if those are the right adjectives—as compulsory purchase, it is essential that they do so within properly defined, clearly understood and transparent legal parameters that are properly scrutinised by ministers.

It is good that the problem has been picked up. It was thrown up when an attempt was made to exercise the right and the legislation was found to be defective, so it is right that we should sort it out. It is good that the order has been brought before the Parliament so that Scottish Water can, in turn, get the Milngavie issue sorted out.

Matters are about to be clarified, because I call Des McNulty.

This is his specialist subject.

Yes, it is my specialist subject.

There are some questions about the order, so it will be useful to explain the background to the long-running saga of the proposal to build new water treatment works at Barrachan.

When Scottish Water chose Barrachan as the site for the new reservoir, it rejected a number of other sites, including Bankell farm and a site called site 6, which lies to the north of Barrachan. Those sites were rejected as the preferred sites for the reservoir largely because of issues of site acquisition and cost—in other words, Scottish Water said that it wanted to build the plant at Barrachan because acquiring the other sites would involve considerable extra cost and trouble.

The site at Barrachan is probably the most environmentally sensitive of all the sites that were considered. It is a B-listed site and is on a hill, so it will be seen from almost every angle in the Milngavie area. It is also immediately adjacent to the reservoir. Many people in Milngavie feel strongly that Scottish Water's proposal of the site was a stalking horse for the site that it really favoured. People could not believe that anyone would be so stupid as to suggest this site.

The member has not mentioned the bats on the site. Will he comment on the relevance of the bats?

I will return to that issue.

The other sites were rejected mainly on the ground that they were hard to acquire. In the case of site 6, there was also an argument that the site was too small. Now, two compulsory purchase orders have been issued—one for Bankell farm and the other for site 6. That demonstrates clearly that the water treatment plant could have been built on either of those sites. CPO number 1, which was issued by Scottish Water, involves taking into possession a larger site than was originally considered for site 6 and turning it into a construction facility.

Many people may see this as an arcane matter, and it is obviously a local issue, but there is a strong sense in the Milngavie community that people were hoodwinked and told lies about the real options and the criteria used by Scottish Water, which wanted to privilege its favoured option. A huge number of concerns were raised by local people, expert professionals whom East Dunbartonshire Council employed to consider the matter and national bodies such as Scottish Natural Heritage and Historic Scotland.

Despite all that local pressure, Scottish Water insisted on driving ahead with its proposals. The council rejected its first proposal—quite rightly—following representations from me and from others. Scottish Water immediately responded with a revised proposal for a significantly smaller plant on the same site. The question in people's minds was, "Why could Scottish Water not have done that in the first place?"

Now that Scottish Water has to acquire the sites to locate the water treatment plant at Barrachan, people are asking themselves why it did not consider the other sites seriously and make a judgment based on environmental and engineering issues. In my view, such a judgment would not have identified Barrachan as the preferred site.

The result of this process will be environmental damage to the Milngavie area, rather than the best engineering or economic solution for the proposed Glasgow water treatment plant. Parliament is being asked to approve CPO powers to allow Scottish Water's botched proposals to proceed—that is the reality. The order has been introduced because Scottish Water got things wrong and the Scottish Executive forgot to take the right steps to put the CPOs in place. I am concerned that Scottish Water is presenting its acquisition of site 6 in CPO number 1 as a temporary measure, so that once building has taken place and the spoil has been used to level the land, further applications may be made for housing—thereby breaching the green belt and adversely affecting the bats. Whatever happens under this proposal, the bats have had it—and so has the credibility of Scottish Water.

Like some other issues, this has been a shambles. Our environment is likely to suffer as a result of what Scottish Water has done, so the wisdom of giving the organisation powers seems questionable.

Another aspect of the Water Industry (Scotland) Act 2002—the requirement on Scottish Water, when proposing major projects, to introduce a code of conduct for consultation with communities—has not been adhered to. More than a year has passed since that provision appeared in legislation, but Scottish Water has done nothing. It has relied on powers that it did not have to drive ahead with proposals and ignore the interests of the local community. The behaviour of Scottish Water in this case has been execrable. I am delighted that this debate has allowed me the opportunity to say what I have said. Members will be able to read about it in the Milngavie and Bearsden Herald on Friday.

We all congratulate Mr McNulty on his contribution to this afternoon's proceedings.

I congratulate Mr McNulty. I believe that Fergus Ewing holds the parliamentary record for the longest uninterrupted speech, which took place in committee on the subject of agricultural holdings.

I remember it all too well.

It lasted 32 minutes and the minister remembers it.

I am sure that Des McNulty will have a claim on being the speaker who spoke for the greatest proportion of a debate. I will not put that record in jeopardy. This is exactly the kind of issue that could have been dealt with in committee. The minister and I have traded information across committee rooms on many occasions. As would have happened in committee, I have some specific questions for the minister.

In article 4(2)(c) of the order, on the Control of Pollution Act 1974, there is a change—[Interruption.] Presiding Officer, could you bring Roseanna Cunningham to order—otherwise I, too, will corpse?

I do not think that her conduct is in any sense discourteous, so she is not out of order.

I thank her for the brief opportunity to gather my thoughts.

He could sit down if he wanted.

No, I am not going to sit down. Let me move instead to article 7. What will be the effect of repealing section 36(3)(g) of the Environment Act 1995, as is specified in paragraph (2) of article 7? I would have asked that question in committee.

Article 4(2)(c) stipulates that the third occurrence of "person" in section 30H of the Control of Pollution Act 1974 be amended to "the person". What will be the effect of that?

I must say how much I admire the minister's method of opening and closing brackets. It is done in a style that has no parallel in this chamber.

Finally, is the minister responsible for there being no water in the members' lounge?

I was not going to ask to speak but I did not want to be left out. This is the best laugh I have had in here since I started, and I could not miss the opportunity of speaking in the only debate in which the Scottish Socialist Party was almost guaranteed to be called.

The debate has enlightened me and may have persuaded me that the SSP should have taken up the position of deputy convener of the Subordinate Legislation Committee. We might then have been able to avoid this sort of scenario.

Finally, if he is offering tea for everybody, I would like to ask Des McNulty to explain the mysteries behind the frequently inexplicable actions of the Executive.

Presiding Officer, could you enlighten me as to what constitutes a quorum in a place such as this? As a Motherwell supporter, I am not used to big crowds, so I am quite comfortable here; however, that said, it is rather insulting that 114 of our members are absent from the debate, regardless of how dull and boring it might be. Members have been asked to represent their electorate. For this morning's three-hour debate, there were, on average, 25 members in the chamber. That is totally unacceptable.

Are you raising a point of order about the quorum?

You can call it anything you like; I am just saying that I am not happy with the situation.

There is no quorum for proceedings in the Parliament.

We move to closing speeches. I ask whether Nora Radcliffe wishes to say anything in response to the debate.

I do not wish to add anything.

I am sure that Brian Monteith will have something to say in response to the debate.

Thank you, Presiding Officer. How long do I have?

It says on my script that you have two minutes, but I will allow a degree of latitude on this occasion.

Although the Conservatives acknowledge that the order represents a necessary tidying-up exercise to update previous legislation following the introduction of the Water Industry (Scotland) Act 2002, we believe that the focus of discussion should lie elsewhere, because, as was mentioned during this morning's debate, there have been some difficulties.

The order relates to the creation of Scottish Water. It is worth noting that, if Ian Lang had chosen to set up one water authority rather than three water authorities, the pain that is being suffered now from the harmonisation of business charges would have been endured earlier and the enormous increases that people in the north have had to suffer for a few years would have been averaged out across Scotland.

I will read out a quotation to illustrate the type of distress that has been caused:

"the average English corner shop pays £141 in annual water bills; in Scotland, the average is £526. An English garage-owner pays £265; the Scottish garage clocks up £822."

I did not intend to participate in the debate, but I could not fail to make use of all the extra time to ask the member a question.

This morning, the Conservatives seemed to argue that the very large increases in charges were largely down to the structure of the water authorities—the present authority and the previous three authorities—and that the Conservatives' suggestion of mutualisation would give greater efficiency. Has the member's argument changed, as his recent comments indicate?

I should say that, regardless of how interesting such points might be, this afternoon's business is the Water Industry (Scotland) Act 2002 (Consequential Provisions) Order 2003, not this morning's debate. We should return to the matter in hand.

I was coming to that point but, in the interest of brevity, I will move on, as I have made my point about the comparative costs in Scotland and England.

There is still a long way to go. Des McNulty's points about the Mugdock situation show how far we have to go. Although the tidying up that the order will do is part of that, the Parliament will have to discuss the water industry again to make further progress and to ensure that the Scottish Water we require is delivered.

When Roseanna Cunningham asked me whether I would like to close in the debate—it is a bit flattering to use the term "debate"—I did not realise that it would be such a privilege. The only member who had a grin on their face at the prospect of discussing water for another 45 minutes was Des McNulty. He must think that Christmas has come early, as he has been able to discuss his pet subject twice in the same day. We welcomed his speech, even though, in effect, it represented a hijacking of the debate as a members' business debate, as it concerned an issue in his local constituency. However, it took up time.

It is not often that we come to a 45-minute debate in which the minister's opening comments are that the piece of legislation that is under discussion is minor and technical and has no impact on the substance of the issue that it deals with. Given that we ran out of time in this morning's debate, we must review the use of parliamentary time. I know that that is an issue for the Parliamentary Bureau but, in his summing up, will the minister indicate whether it was the Executive that requested 45 minutes for the debate? I suspect that the bureau usually takes advice from the Executive. If that is the case, why on earth did the Executive ask for 45 minutes?

Usually when a member sums up, he talks about the contributions made by the various members. I am finding that extremely difficult to do. Alex Johnstone did not have much to say. I admit that Roseanna Cunningham made similar points and I do not believe that anyone disagreed with those.

The minister says that the order will give Scottish Water the power to make compulsory purchase orders. What is the usual motivation for a water authority to use a compulsory purchase order power? Is it to supply water infrastructure to rural housing, which is an important issue? How often does that happen? Many members who represent rural constituencies would like that to happen more often. How often are obstacles put in the way of the authority purchasing land?

Will the member give way?

I have an intervention from Des McNulty. I will take the intervention if the member keeps it brief.

I am always brief.

One area of concern is that Scottish Water could use CPOs to gather land for which it might have a temporary rather than a long-term use. I would welcome it if, in his summing up, the minister could identify what safeguards there are to ensure that Scottish Water does not misuse the CPO power to secure land that it might then release to other agencies, including private owners.

I also ask the minister to comment on the balance between compulsorily purchasing land to expand rural housing and doing so to build new treatment plants. It would be interesting to know what he thinks about that.

I say to Conservative members that the CPO powers are also an argument against privatisation of the water industry. If we allow water authorities to purchase land compulsorily and then introduce privatisation and increased competition to the industry, multinational companies will come in, buy up the water companies and suddenly they will own more of Scotland's land. I am sure that that is one thing that most members would want to oppose.

On that note, I reassure people in the gallery that the Parliament usually gathers to discuss issues of substance. I hope that we will do so from now on.

How do I begin? Carolyn Leckie can see what she is missing by not taking up the post of deputy convener of the Subordinate Legislation Committee.

Roseanna Cunningham's conspiracy theory falls at the first hurdle. She is correct to say that the order would usually lie for 40 days and be considered by the Subordinate Legislation Committee and by the Environment and Rural Development Committee. However, the order must be formally approved and there was no committee in place when the order was laid so it had to come to the chamber, which is why we all had to come here today.

There is a serious point, and I am surprised that the Tories, as the guardians of private property, did not pick up on it, although Richard Lochhead made a point about it. The compulsory purchase of land that belongs to an individual is obviously a serious intrusion by the state into that individual's right of ownership. Therefore, it is important that we get absolutely correct legislation that identifies Scottish Water's powers in that regard.

Will the minister reassure me that the proposals contained in the order contain no changes to the substance of the powers that will now be allocated to Scottish Water rather than its constituent organisations?

For the third time, the answer to that is yes.

Brian Monteith's reference to Ian Lang was more inappropriate than he could imagine. Although it is only now that we have become aware of the defect, it has existed since 1994—it was inherent in the Local Government (Scotland) Act 1994. The defect was transferred from there to the Water Industry (Scotland) Act 2002 when we were all sitting in committee discussing it, so it is a product of the previous Conservative Administration—yet another legacy to the water industry that it left us to fix.

I can answer the point that Stewart Stevenson helpfully made. The changes to which he referred are a tidying-up exercise to reflect the substitution of references to "sewerage authority" with "Scottish Water". It follows that the amendment to section 30H of the Control of Pollution Act 1974 has no substantive effect. I am sure that that reassures Stewart Stevenson.

On CPOs, because there is a referral from East Dunbartonshire Council to ministers, and Scottish Water is considering it, I will not comment on the Mugdock situation, except to say that the Executive wants the people of Glasgow to have a secure, safe and clean water supply. Approval of the order in no way, shape, manner or form represents approval by ministers of the CPO that has been referred to.

Richard Lochhead raised the question of how many applications have been made. There have been no other applications. That is the first and only CPO sought by Scottish Water since its establishment in 2002. Only one CPO application was made by the previous water authorities under the Local Government (Scotland) Act 1994—to which I referred—and that was in connection with the Helensburgh treatment works. As that CPO was made in good faith, the title is unaffected by the prior existence of any technical defect that we are now sorting for all future CPO applications.

I hope that those remarks have dealt successfully with all the points that were raised. I move that the order be approved.

We will come to that at decision time.

On a point of order, Presiding Officer. We have spent the past 40 minutes dealing with the order with a degree of humour, if not outright levity, but I hope that you will reflect on the experience of the past 40 minutes and communicate to the powers that be the concern that allocating that amount of time to something that clearly could have been dealt with in a fraction of the time is a misuse of parliamentary time, and ought not to be encouraged.

I am sure that the Parliamentary Bureau, as ever, will reflect on the allocation of time for business.