The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005

Reports on References

7.—(1) A report of the Commission on a reference shall be made to the WIC.

(2) For the purpose of carrying out any investigation in relation to the making of a report on a reference, and subject to paragraph (3), the Commission may disclose any information held by it for the purpose of facilitating its consideration of the reference.

(3) In making a report on a reference, including any investigation carried out in relation to such a report, the Commission must have regard to the following considerations before disclosing any information–

(a)the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest;

(b)the need to exclude from disclosure (so far as practicable) any commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the person to which it relates;

(c)the need to exclude from disclosure (so far as practicable) any information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests; and

(d)the extent to which the disclosure of the information mentioned in sub-paragraph (b) or (c) is necessary for the purposes of the report.

(4) In making a report on a reference, the Commission–

(a)shall include in the report definite conclusions on the questions or, as the case may be, the matters comprised in the reference together with such an account of its reasons for those conclusions as in its opinion is expedient for facilitating a proper understanding of those questions and its conclusions; and

(b)in respect of an article 3(2) or (3) reference–

(i)where it concludes that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(ii)where it concludes that any adverse effects so specified could be remedied or prevented by modifications of the conditions of a water services licence or a sewerage services licence to which the reference relates, shall specify in the report modifications by which those effects could be remedied or prevented; or

(c)in respect of an article 3(4) reference, where it concludes that a different determination or revised determination should be substituted for that of the WIC, shall specify in the report, modifications of the determination or revised determination required in consequence of its conclusions.

(5) The Commission shall, at the time it makes its report on a reference, advise the WIC as to the matters, if any, it considers should be excluded from the report on publication, having regard to paragraph (3); and the WIC shall have regard to any advice from the Commission in that regard.

(6) A conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two thirds of the members of the group constituted, in connection with the reference, under paragraph 15 of Schedule 7 to the Competition Act 1998(1).

(7) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

(8) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference.

(9) Subject to paragraphs (10) to (12), the WIC shall, as soon as practicable after receiving a report on a reference–

(a)serve a copy of it on–

(i)all water services providers and sewerage services providers;

(ii)Scottish Water;

(iii)the Scottish Ministers; and

(iv)the Convener of the Water Customer Consultation Panels; and

(b)publish a copy of the report in such manner as the WIC considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(10) Where it appears to the WIC that publication of any matter in the Commission’s report on a reference would be against the public interest or against the interests, including legitimate business interests, of any person to which it relates, the WIC shall, as soon as practicable–

(a)serve a copy of the report on–

(i)where appropriate, the water services provider or sewerage services provider who made the request under article 3 to which the reference relates; and

(ii)Scottish Water; and

(b)notify that person that they may make representations to the WIC on any matter the publication of which in the report that person considers would be–

(i)against the public interest;

(ii)against their interests, including legitimate business interests; or

(iii)against the interests, including legitimate business interests, of any other person,

and any such representations shall be made to the WIC within 14 days of the date upon which notification was given by the WIC.

(11) If the WIC receives any representations within the period specified in paragraph (10), it shall take those representations into account when complying with its duty under paragraph (9).

(12) The WIC shall not publish the report of the Commission on a reference until after the expiry of the period for making representations specified in paragraph (10).