Statutory Instruments
Water Industry, England And Wales
Made
9th January 2015
Coming into force in accordance with regulation 1(1).
The Secretary of State makes these Regulations in the exercise of the powers conferred by sections 36A and 213(2)(d) and (dd) of the Water Industry Act 1991(1) in relation to infrastructure which is provided or is to be provided for the use of one or more English undertakers(2).
The Secretary of State has consulted as required by section 36G(2) of that Act(3).
A draft of these Regulations has been laid before Parliament in accordance with section 36G(1)(a) of that Act and approved by resolution of each House of Parliament.
1.—(1) These Regulations may be cited as the Water Industry (Specified Infrastructure Projects) (English Undertakers) (Amendment) Regulations 2015 and come into force on the day after the day on which they are made.
(2) In these Regulations, “the 2013 Regulations” means the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013(4).
2. Schedule 1 to the 2013 Regulations (application of the Water Industry Act 1991 and related provisions) is amended in accordance with regulations 3 to 5.
3.—(1) Paragraph 4 (conditions of project licences) is amended as follows.
(2) In the section 17HA of the Water Industry Act 1991 (conditions of project licences) which is set out in paragraph 4—
(a)in subsection (2)—
(i)at the end of paragraph (b), omit the word “and”;
(ii)in paragraph (c), for “specified questions” to the end substitute “such questions arising under or in connection with the licence and of such other matters as are specified or are of a specified description; and”; and
(iii)after paragraph (c), insert—
“(d)provide for the reference by the Authority to the CMA, and the determination by the CMA, of such questions arising under or in connection with the licence and of such other matters, including disputes as to determinations by the Authority, as are specified or are of a specified description.”; and
(b)after subsection (5) insert—
“(6) Where any question or other matter falls to be determined by the CMA in pursuance of a provision contained in a project licence held by a licensed infrastructure provider—
(a)it is the duty of the Authority, on being required to do so by that licensed infrastructure provider, to refer that question or matter to the CMA; and
(b)it is the duty of the CMA to determine any question or other matter referred by virtue of paragraph (a) in accordance with the principles which apply, by virtue of Part 1 of this Act, in relation to determinations under this Chapter by the Authority.
(7) For the purposes of subsection (6), where—
(a)the question or matter referred to the CMA concerns the review of a price control imposed on the licensed infrastructure provider; and
(b)the CMA is to decide to what extent it is reasonable to take into account in its determination costs incurred or borne by the licensed infrastructure provider in connection with the reference,
the CMA shall also have regard to the extent to which, in its view, its determination is likely to support the licensed infrastructure provider’s (rather than the Authority’s) claims in relation to the question or matter referred to it.
(8) Section 17K(5) and (7), and sections 17L and 17M, apply to references to the CMA under this section as they apply to references under section 17K(1).
(9) A report of the CMA on a reference under this section—
(a)shall be made to the Authority; and
(b)shall include definite conclusions on the questions or other matters comprised in the reference, together with such an account of the CMA’s reasons for those conclusions as, in the opinion of the CMA, is expedient for facilitating a proper understanding of those questions or other matters and of the CMA’s conclusions.
(10) Section 17N(10), (13) and (14) applies to a report of the CMA on a reference under this section as it applies to a report on a reference under section 17K(1).
(11) The functions of the CMA with respect to a reference under this section are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013(5) (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act 2002(6), as applied by subsection (8) read with section 17M).”.
4. In paragraph 5 (modification of project licences)—
(a)in sub-paragraph (2), for “Competition Commission” substitute “CMA”; and
(b)in sub-paragraph (6), for “Commission’s” (in both places where it occurs) substitute “CMA’s”.
5. In paragraph 8 (general duty of the Authority to keep matters under review), in sub-paragraph (c), for “OFT” substitute “CMA”.
6. The provisions of the Water Industry Act 1991 applied by the 2013 Regulations have effect with the amendments of those provisions made by—
(a)the Enterprise and Regulatory Reform Act 2013; and
(b)the Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Savings Provisions) Order 2014(7).
de Mauley
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
9th January 2015
(This note is not part of the Order)
These Regulations amend Schedule 1 to the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582) (“the 2013 Regulations”).
Regulation 3 amends paragraph 4 of Schedule 1 to the 2013 Regulations (which gives effect to the section 17HA of the Water Industry Act 1991 (c.56) (“the 1991 Act”) inserted under that paragraph) by giving the Water Services Regulation Authority the power to impose conditions in a project licence which provide for certain questions or other matters to be referred to, and determined by, the Competition and Markets Authority. Section 219 of the 1991 Act defines “the CMA” as the Competition and Markets Authority.
Regulations 4 and 5 make amendments to paragraphs 5 and 8 of Schedule 1 to the 2013 Regulations which are consequential on amendments to the 1991 Act made by the Enterprise and Regulatory Reform Act 2013 (c.24).
Regulation 6 gives effect to the amendments made by the Enterprise and Regulatory Reform Act 2013 and the Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Savings Provisions) Order 2014 (S.I. 2014/892) to those provisions of the 1991 Act as applied by the 2013 Regulations.
A full impact assessment has not been produced for this instrument as no significant cost impact in the private or voluntary sector is foreseen. An Explanatory Memorandum is available alongside this instrument on the legislation website (www.legislation.gov.uk).
1991 c. 56; section 36A was inserted by section 35(1) of the Flood and Water Management Act 2010 (c. 29). Section 213 was amended by section 56(6) of, and paragraph 28 of Schedule 1 to, the Competition and Service (Utilities) Act 1992 (c. 43) and section 35(2) of the Flood and Water Management Act 2010. There are other amendments, but none is relevant.
See the definition of “English undertaker” in section 36E(2)(a) of the Water Industry Act 1991; section 36E was inserted by section 35(1) of the Flood and Water Management Act 2010. The powers to make Regulations in relation to infrastructure which is provided or to be provided for the use of one or more Welsh undertakers are exercisable by the Welsh Ministers. See the definition of “Welsh undertaker” in section 36E(2)(b) of the Water Industry Act 1991. The functions of the Secretary of State under section 213 of the Water Industry Act 1991 were exercisable by the National Assembly for Wales (“the Assembly”) to the same extent as the powers to which that section applies were exercisable by the Assembly by virtue of article 2 of the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672); see the entry in Schedule 1 for the Water Industry Act 1991 as substituted by paragraph (e) of Schedule 3 to the National Assembly for Wales (Transfer of Functions) Order 2000 (S.I. 2000/253) and amended by section 100(2) of the Water Act 2003 (c. 37); there are other amendments but none is relevant. By virtue of section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006 (c. 32), functions conferred on the Assembly are exercisable by the Welsh Ministers. An amendment by the Flood and Water Management Act 2010 of another enactment does not prevent the continued operation of any transfer of functions by or by virtue of the Government of Wales Act 1998 (c. 38) or 2006 irrespective of whether the amendment amends an existing function or confers a new function (see section 49(6)(a) of the Flood and Water Management Act 2010).
Section 36G was inserted by section 35(1) of the Flood and Water Management Act 2010.
2013 c. 24; Part 1 of Schedule 4 was amended by section 67 of the Financial Services (Banking Reform) Act 2013. Part 1 was also amended by section 129 of, and Schedule 8 to, that Act, although those provisions are not yet in force. Part 3 of Schedule 4 was amended by section 79(8) of, and Schedule 5 to, that Act.
2002 c. 40; sections 109, 110 and 111 were amended by section 29 of and (respectively) paragraphs 143, 144 and 145 of Schedule 5 to the Enterprise and Regulatory Reform Act 2013. Sections 110A and 110B were inserted by section 29 of that Act. Sections 112, 113, 114 and 115 were amended by (respectively) paragraphs 146, 147, 148 and 149 of Schedule 5 to that Act.