Clause 33 - Appeals against enforcement orders

Water Bill [Lords] – in a Public Bill Committee at 4:30 pm on 14 October 2003.

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Photo of Norman Baker Norman Baker Liberal Democrat, Lewes 4:30, 14 October 2003

I beg to move amendment No. 208, in

clause 33, page 37, line 43, at end insert

'and at the end of paragraph (b) of subsection (1) there is inserted ''or''.'.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following:

Amendment No. 209, in

clause 33, page 38, line 3, leave out 'or'.

Amendment No. 210, in

clause 33, page 38, leave out lines 4 and 5.

Clause stand part.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am delighted to see you back after the conference break, Mr. Amess. We left before Brent, East and the party conferences. [Hon. Members: ''Get on with it.''] Within one minute, I am being heckled from both sides, so I must be doing something right.

The Government have tabled an amendment to leave out clause 33. That goes even further than amendments Nos. 208, 209 and 210, which would leave out part of the clause. Our preference is to leave out the entire clause, but we did not think that the Government would buy that, so we tabled the amendments to limit it. We are perfectly happy with the Government's proposal, so I need not speak in great detail. I will leave that to the Minister.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Is the hon. Gentleman continuing to move the amendment? I am a bit confused.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am happy not to continue to move the amendment, but I do not want to prevent another hon. Member from making a contribution on clause stand part or the other amendments, so I will seek leave to withdraw it later.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Clearly, we are somewhat rusty after being rudely interrupted in September.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

As I know that the hon. Gentleman intends to withdraw the amendment, I will just draw the Minister's attention to the wishes of Water UK, which felt that the clause should be included in the Bill, but perhaps in part 3, which is headed ''Miscellaneous''. It rightly felt that part 1 deals with the Water Resources Act 1991, whereas the clause deals with the Water Industry Act 1991. Water UK feels that it would be sensible to move the clause to the end of part 3. I know that the Minister proposes to withdraw the clause altogether. Although we would not have a problem with moving the clause elsewhere, I hope that the principle behind it will not be lost.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

It is nice to see you again, Mr. Amess, and I welcome the Committee back.

We want to remove the clause. It might be useful for the Committee if I explain the problem, which has been touched on by previous speakers. Basically, Conservatives in the Lords mistakenly inserted the clause into part 1. The clause refers to the powers of Ofwat, but because of the error and the position of the clause in the Bill, a number of speakers thought that it created a right to appeal against decisions made by the Environment Agency.

The clause widens the scope for companies to question the validity of enforcement orders issued by Ofwat or the Secretary of State when conditions of appointment or relevant statutory duties have not been met. Subsection (3) might appear to be a major change, but it adds nothing. The company can already appeal if Ofwat makes an order that is not within its powers. That could be due to a mistake either in law or in the application of law to the facts. Therefore, there is no need for the first addition of the grounds of appeal.

With regard to the second addition, that of a reasonableness requirement, that is already implicit, in that the Water Industry Act 1991 gives details of the procedures that must be followed, which include appropriate safeguards. Ofwat is already required to give notice of the terms of a final order and any provisional order that it intends to confirm, and it must consider any representations made. Ofwat is then required to give further notice of its decision and consider further representations, if it decides to issue the final enforcement order or to confirm a provisional order in a different form following the first representations. If the regulator then failed to take account of material representations, it could provide grounds for the company to challenge the enforcement order. The company can rely on the existing grounds of appeal that the safeguards already set out in the Act have not been complied with.

Existing provisions already give Ofwat a discretion not to issue an order if the breach was trivial or if the company had given undertakings to Ofwat to remedy the breach. There are already extensive and transparent safeguards to protect against arbitrary action by the regulator.

I am pleased that the hon. Member for Lewes (Norman Baker) will not press the amendments, because they would not help the situation. In fact, they do not go far enough, as he rightly said.

There is a problem in respect of whether the clause should be inserted elsewhere in the Bill, because subsection (4) would allow the High Court to vary an enforcement order if a complaint is upheld. That would include parts of the order that had not even been the subject of the company's application, which would not be appropriate. The court already has the power, wholly or partially, to quash an order because it is unlawful, but it would be unusual to ask the court to substitute its own interpretation of the technical issues involved in the contravention, especially if they were not the subjects of the application in the first place. That is one of the problems the clause, apart from the fact that it was inserted in the wrong part of

the Bill. With that in mind, I invite the Committee to disagree to the clause and ensure that the issue is dealt with properly.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

My noble Friends did a good job in including this part of the Bill, because it allows a judicial review, which deals only with procedure and not with substance, and clause 33 creates the possibility of an appeal on the substance of the case. I accept the Minister's reservations about the elements that are not included in the application to the court being a problem, but I hope he will take on board the possibility that an appeal should be based on the substance of the case.

As for it being in an inappropriate part of the Bill, I suggest that the fluoridation debate is also in an inappropriate part—we will deal with that in due course. If the Minister will take note of the possibility of an appeal on the substance of the case, we will be delighted if he can find a way of including it later in the Bill.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The Minister's contribution was terribly well read out and awfully convincing. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 disagreed to.