Water Services etc. (Scotland) Act 2005

Part 1 — Water Industry Commission and Customer Panels

Water Industry Commission for Scotland

1

• (1) For section 1 (Water Industry Commissioner for Scotland) of the 2002 Act there is substituted—

(1) (1) There is established a body to be known as the Water Industry Commission for Scotland (referred to in this Act as “the Commission”). (2) The Commission has the general function of promoting the interests of persons (taken as a whole) whose premises— (a) are connected to the public water supply system or the public sewerage system (within the meaning of Part 2 of the Water Services etc. (Scotland) Act 2005 (asp 3)) or both, or (b) might reasonably become connected to either or both of those systems, relating to the provision to them of water and sewerage services. (3) The Scottish Ministers may, after consulting the Commission, give the Commission directions of a general or specific character as to the financial management or administration of the Commission; and the Commission must comply with any such directions. (4) Schedule A1 makes further provision about the Commission.

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• (2) In section 4 (power of the Commissioner to require information) of that Act, for subsection (2) there is substituted—

(2) Subsection (1) does not authorise the Commission to require the disclosure of anything which a person would be entitled to refuse to disclose on grounds of confidentiality in proceedings in the Court of Session. (3) Where Scottish Water considers that it is entitled to withhold information from the Commission— (a) because it is not reasonably sought, or (b) by virtue of subsection (2), it must intimate that fact to the Commission in writing.

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• (3) In section 5 (annual reports by the Commissioner etc.) of that Act, at the end there is added—

(4) The Scottish Ministers must lay before the Parliament a copy of each report submitted to them under subsection (1)(a).

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• (4) Schedule 1 inserts schedule A1 into that Act.

Control of water from coal mines

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The office of Water Industry Commissioner for Scotland is dissolved on such date as the Scottish Ministers may by order appoint.

Customer Panels

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Part 2 — Provision of water and sewerage services

Offences

Public water supply system: offences

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• (1) Any person who introduces water into the public water supply system is guilty of an offence.

• (2) Any person who uses the public water supply system for the purposes of supplying water to the premises of another person is guilty of an offence.

• (3) Any person who makes arrangements for or in relation to the supply of water to the premises of another person through the public water supply system is guilty of an offence.

• (4) Subsections (1) to (3) do not apply to—

• (a) Scottish Water; or

• (b) another person if (and to the extent that) the person is acting on behalf of Scottish Water or under its authority.

• (5) Subsections (2) and (3) do not apply to a person if (and to the extent that) the person is supplying water with the help of services provided by Scottish Water as described in section 30 of the 2002 Act.

• (6) Subsection (3) does not apply to a water services provider where the provider is acting as authorised by the water services licence held by the provider.

• (7) The Scottish Ministers may by regulations—

• (a) specify other circumstances in which subsection (1), (2) or (3) does not apply; or

• (b) specify that subsection (1), (2) or (3) does not apply—

• (i) to such other person or to such category of person; and

• (ii) to such extent and subject to such conditions,

as may be specified in the regulations.

• (8) The Scottish Ministers are to consult—

• (a) Scottish Water;

• (b) the Commission; and

• (c) such other persons as they consider appropriate,

on any regulations they propose to make under subsection (7).

• (9) It is competent to make regulations under subsection (7) only if the effect of the regulations would not be prejudicial to the exercise of Scottish Water's core functions as respects the supply of water.

• (10) A person who is guilty of an offence under subsection (1) is liable—

• (a) on summary conviction, to a fine not exceeding £20,000; or

• (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

• (11) A person who is guilty of an offence under subsection (2) or (3) is liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum; or

• (b) on conviction on indictment, to a fine.

• (12) Any contract or other agreement which involves a contravention of subsection (1), (2) or (3) is unenforceable.

Public sewerage system: offences

5

• (1) Any person who draws sewage from the public sewerage system is guilty of an offence.

• (2) Any person who uses the public sewerage system for the disposal of sewage from the premises of another person is guilty of an offence.

• (3) Any person who makes arrangements for or in relation to the provision of sewerage to, or disposal of sewage from, the premises of another person through the public sewerage system is guilty of an offence.

• (4) Subsections (1) to (3) do not apply to—

• (a) Scottish Water; or

• (b) another person if (and to the extent that) the person is acting on behalf of Scottish Water or under its authority.

• (5) Subsections (2) and (3) do not apply to a person if (and to the extent that) the person is providing sewerage, or disposing of sewage, with the help of services provided by Scottish Water as described in section 30 of the 2002 Act.

• (6) Subsection (3) does not apply to a sewerage services provider where the provider is acting as authorised by the sewerage services licence held by the provider.

• (7) The Scottish Ministers may by regulations—

• (a) specify other circumstances in which subsection (1), (2) or (3) does not apply; or

• (b) specify that subsection (1), (2) or (3) does not apply—

• (i) to such other person or to such category of person; and

• (ii) to such extent and subject to such conditions,

as may be specified in the regulations.

• (8) The Scottish Ministers are to consult—

• (a) Scottish Water;

• (b) the Commission; and

• (c) such other persons as they consider appropriate,

on any regulations they propose to make under subsection (7).

• (9) It is competent to make regulations under subsection (7) only if the effect of the regulations would not be prejudicial to the exercise of Scottish Water's core functions as respects the provision of sewerage and disposal of sewage.

• (10) A person who is guilty of an offence under subsection (1) is liable—

• (a) on summary conviction, to a fine not exceeding £20,000; or

• (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

• (11) A person who is guilty of an offence under subsection (2) or (3) is liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum; or

• (b) on conviction on indictment, to a fine.

• (12) Any contract or other agreement which involves a contravention of subsection (1), (2) or (3) is unenforceable.

• (13) In this Part, “sewage” is to be construed in accordance with section 59(1) (interpretation) of the 1968 Act.

Licensing of services to eligible premises

Licence authorisation

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• (1) The Commission may, subject to section 7 and paragraphs 1, 1A and 2 of schedule 2, grant a licence authorising a person—

• (a) to—

• (i) make arrangements with the occupier of any eligible premises for or in relation to the supply of water to the premises through the public water supply system; and

• (ii) fix, demand and recover charges for or in relation to the supply of water to any premises in respect of which the person has made such arrangements; and

• (b) to make such arrangements with Scottish Water and such other persons as are necessary for the purposes of or in connection with the things mentioned in paragraph (a).

• (2) A licence granted under subsection (1) is in this Act referred to as a “water services licence”; and a person who holds a water services licence is in this Act referred to as a “water services provider”.

• (3) The Commission may, subject to section 7 and paragraphs 1, 1A and 2 of schedule 2, grant a licence authorising a person—

• (a) to—

• (i) make arrangements with the occupier of any eligible premises for or in relation to the provision of sewerage to, or the disposal of sewage from, the premises through the public sewerage system; and

• (ii) fix, demand and recover charges for or in relation to the provision of sewerage to, and disposal of sewage from, any premises in respect of which the person has made such arrangements; and

• (b) to make such arrangements with Scottish Water and such other persons as are necessary for the purposes of or in connection with the things mentioned in paragraph (a).

• (4) A licence granted under subsection (3) is in this Act referred to as a “sewerage services licence”; and a person who holds a sewerage services licence is in this Act referred to as a “sewerage services provider”.

• (5) The references in subsections (1) and (3) to the occupier of premises are, if the premises are unoccupied, to be construed as references to the owner of the premises.

Granting of licences

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• (1) The Commission may grant a water services licence or a sewerage services licence only if satisfied that the applicant has the ability to perform adequately the activities authorised by the licence.

• (2) In assessing an applicant's ability so to perform those activities, the Commission is to have special regard to the following factors (in so far as relevant in relation to the performance of those activities)—

• (a) knowledge, expertise and experience; and

• (b) financial acumen and business viability,

and such other matters as the Scottish Ministers may by order specify.

• (3) The Commission may issue guidance (either generally or in a particular case or category of case) in relation to the things mentioned in subsection (2).

• (4) A water services licence and a sewerage services licence—

• (a) must be in writing; and

• (b) unless revoked or suspended, continues in force for such period as may be specified in or determined by or under the licence.

• (5) As soon as practicable after refusing an application for a water services licence or a sewerage services licence, the Commission is to intimate the refusal to—

• (a) the applicant; and

• (b) Scottish Water.

• (6) As soon as practicable after granting a water services licence or a sewerage services licence, the Commission is to send a copy of the licence to—

• (a) the person to whom it is granted; and

• (b) Scottish Water.

Compliance with licences

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• (1) The Commission is to—

• (a) monitor compliance with the terms and conditions of water services licences and sewerage services licences; and

• (b) take such steps as it considers are necessary for the purposes of ensuring that the terms and conditions of such licences are complied with.

• (2) The Commission may give directions to any water services provider or sewerage services provider for the purpose of ensuring that the provider complies with the terms and conditions of the provider's licence; and the provider must comply with any such directions.

• (3) The Commission may issue guidance (either generally or in a particular case or category of case) in relation to compliance with the terms and conditions of water services licences and sewerage services licences.

• (4) Scottish Water must report to the Commission any contravention of a term or condition of a water services licence or a sewerage services licence which appears to it to have occurred or be occurring.

Fees relating to licences

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• (1) The Commission may, for the purpose mentioned in subsection (2), make a scheme (a “fees scheme”) which specifies—

• (a) the matters relating to water services and sewerage services licences in respect of which fees are payable; and

• (b) the amounts of fees payable (and, as appropriate, the persons by whom they are payable) in respect of each of those matters.

• (2) The purpose is securing that the fees payable in accordance with the scheme are sufficient to meet the costs incurred by the Commission in exercising its functions relating to water services and sewerage services licences.

• (3) A fees scheme may, in particular—

• (a) impose on licence-holders fees by way of annual levies; and

• (b) specify fees by reference to maximum amounts.

• (4) A fees scheme may make provision with respect to the times and methods of payment of the fees specified by the scheme.

• (5) A fees scheme may—

• (a) make different provision for different cases or types of case;

• (b) revoke or amend a previous scheme.

• (6) The Commission must—

• (a) send any fees scheme to the Scottish Ministers for approval; and

• (b) publish a summary of the scheme (and, in doing so, invite representations for the purposes of subsection (7)).

• (7) The Scottish Ministers—

• (a) must have regard to any representations about a fees scheme which are made to them within 4 weeks of publication of the summary of it under subsection (6)(b); and

• (b) may approve a fees scheme with or without modifications.

• (8) If the Scottish Ministers approve a fees scheme with modifications, they must give their reasons for doing so.

• (9) When a fees scheme has been approved under subsection (7), the Commission—

• (a) must—

• (i) make arrangements for allowing any person to obtain a copy of the scheme on payment of such reasonable fee (if any) as the Commission may determine; and

• (ii) publicise those arrangements and publish the scheme; and

• (b) may charge and recover fees in accordance with the scheme.

Licensed providers to give information

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• (1) Water services providers and sewerage services providers must provide the Commission with such information (including information in the form of a document) as it reasonably requires in the exercise of its functions.

• (2) Subsection (1) does not authorise the Commission to require the disclosure of anything that a person would be entitled to refuse to disclose on grounds of confidentiality in proceedings in the Court of Session.

• (3) Any person who fails, without reasonable excuse, to provide information required by the Commission under subsection (1) is guilty of an offence.

• (4) A person who is guilty of an offence under subsection (3) is liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum; or

• (b) on indictment, to a fine.

Participation of licensed providers

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• (1) The Commission is (so far as is consistent with the exercise of its function under section 1(2) of the 2002 Act) to exercise its functions relating to water services and sewerage services licences for the purposes of securing the participation—

• (a) in an orderly manner; and

• (b) in a manner that is not detrimental to the exercise of Scottish Water's core functions,

of water services and sewerage services providers in the provision of water and sewerage services.

• (2) The Commission may give directions of a specific or general character to—

• (a) Scottish Water; or

• (b) any—

• (i) water services or sewerage services provider; or

• (ii) person in whose favour it intends to grant a water services or sewerage services licence,

as to steps to be taken for the purposes mentioned in subsection (1).

• (3) Directions under subsection (2) may, in particular, relate to—

• (a) any costs attributable to the participation of water services and sewerage services providers in the provision of water and sewerage services; and

• (b) the provision or exchange of information about customers of water services or sewerage services providers.

• (4) Before giving directions under subsection (2), the Commission must consult any person to whom the directions are to be given.

• (5) Any person to whom directions are given under subsection (2) must comply with the directions.

Licences and compliance: further provision

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Schedule 2 makes further provision regarding licences and compliance with licences.

Scottish Water: water and sewerage services undertaking

Water and sewerage services undertaking

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• (1) Scottish Water must, in accordance with any requirements made under subsection (2), secure the establishment of a business undertaking for the purposes of this section.

• (2) The Scottish Ministers may require Scottish Water to—

• (a) take such steps for the purposes of or in connection with—

• (i) the establishment and development of the undertaking; and

• (ii) Scottish Water's interest in the undertaking,

as the Scottish Ministers may specify; and

• (b) take the steps, or any particular steps, by such date as they may specify.

• (3) It is, subject to the approval of the Scottish Ministers, for Scottish Water to determine whether the undertaking is—

• (a) to be—

• (i) a subsidiary (as defined in section 1159 of the Companies Act 2006) of Scottish Water;

• (ii) a company (as defined in section 1(1) of that Act) formed by Scottish Water (on its own or with others); or

• (iii) a partnership; or