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Session 2006 - 07
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Delegated Legislation Committee Debates

Draft Water and Sewerage Services (Northern Ireland) Order 2006

The Committee consisted of the following Members:

Chairman: Mr. Martin Caton
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Cairns, David (Parliamentary Under-Secretary of State for Scotland)
Devine, Mr. Jim (Livingston) (Lab)
Durkan, Mark (Foyle) (SDLP)
Flello, Mr. Robert (Stoke-on-Trent, South) (Lab)
Foster, Mr. Michael (Worcester) (Lab)
Hermon, Lady (North Down) (UUP)
Khan, Mr. Sadiq (Tooting) (Lab)
Lancaster, Mr. Mark (North-East Milton Keynes) (Con)
McCrea, Dr. William (South Antrim) (DUP)
McKechin, Ann (Glasgow, North) (Lab)
Main, Anne (St. Albans) (Con)
Mallaber, Judy (Amber Valley) (Lab)
Mates, Mr. Michael (East Hampshire) (Con)
Norris, Dan (Wansdyke) (Lab)
Öpik, Lembit (Montgomeryshire) (LD)
Robertson, Mr. Laurence (Tewkesbury) (Con)
Skinner, Mr. Dennis (Bolsover) (Lab)
Taylor, Mr. Ian (Esher and Walton) (Con)
Waltho, Lynda (Stourbridge) (Lab)
Wright, David (Telford) (Lab)
Jenny McCullough, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Mackinlay, Andrew (Thurrock) (Lab)

Fifth Delegated Legislation Committee

Tuesday 28 November 2006

[Mr. Martin Caton in the Chair]

Draft Water and Sewerage Services (Northern Ireland) Order 2006

4.30 pm
The Parliamentary Under-Secretary of State for Scotland (David Cairns): I beg to move,
That the Committee has considered the draft Water and Sewerage Services (Northern Ireland) Order 2006.
A draft of the order was laid before the House on 9 November. May I begin by saying——it is customary, but heartfelt——what a pleasure it is to serve under your chairmanship today, Mr. Caton?
The draft order sets out the blueprint for an ambitious programme of investment and reform of water and sewerage services in Northern Ireland. It establishes the framework within which sustained investment will take place to improve the quality of our drinking water, better protect the environment and radically enhance the delivery of water and sewerage services to consumers. The draft order addresses those objectives principally by providing for a company to be known as Northern Ireland Water Ltd, wholly owned by Government and operating on a commercial basis, to deliver water and sewerage services. Secondly, it sets out the duties and powers of the company to deliver water and sewerage services. Thirdly, it establishes a robust and up-to-date regulatory regime for the water utility by extending the remit of the current energy regulator to include water matters.
Fourthly, it places duties on the company and the regulator to address consumer interests while also extending the role of the General Consumer Council for Northern Ireland to include water and sewerage matters. Fifthly, it establishes a framework for charging that will ensure that charges will be fair and affordable with protection for the most vulnerable and low income households in the form of an affordability tariff. Finally, it updates the environmental regulatory regime within which water and sewerage services will be delivered. The policies underpinning this draft order have been subject to extensive impact assessment and public consultation over the last three and a half years. The draft legislation was issued for consultation over 12 weeks from June to August this year.
The introduction of new charges is never popular, yet I am sure that all of us agree that investment in water and sewerage services, measures to protect the environment, improved accountability through our robust regulatory framework, new rights for consumers, protection for those on low incomes and the efficient delivery of essential services are vital aims. Many of the respondents to the consultation recognised that and welcomed the measures that the draft order introduces.
Lady Hermon (North Down) (UUP): I too am delighted to sit under your chairmanship, Mr. Caton, and I am very pleased that the Minister gave way.
As the Minister’s Department has just been taken to court and the Consumer Council has obtained a declaration, will the Minister kindly explain how it ended up in court and how the Consumer Council was so successful?
David Cairns: In my relatively brief time in Northern Ireland, I have found that one can end up in court very quickly. A number of judicial reviews are ongoing against me in various departmental guises on planning policy statements and other issues. It is not that difficult to end up in court in Northern Ireland. The hon. Lady drew attention to the declaration. I know that hon. Members have been sent a copy of it. It is self-explanatory. It is issued to us as a Committee to determine as we see fit the appropriate action to take in relation to the processing of the draft order under the affirmative procedure, which is the procedure we are using to day.
Andrew Mackinlay (Thurrock) (Lab): Will the Minister give way?
David Cairns: I will in a second. I am just responding to the substance of the hon. Lady’s claim. The first action that was being asked of the judge when the judicial review was first heard was that the proceedings be stopped. The judge rejected that. Then 16 counts were brought, most of them concerning the statutory consultation period and the way in which the Government conform to Cabinet Office guidelines on statutory consultation periods: 15 of the 16 counts were dismissed. One of them, which I have said I take seriously, concerned the actions of the Department after the formal consultation period ended in a window of opportunity of about two weeks between the end of the consultation period and the issuing of further statements on this matter. The judge said that, having gone through the statutory consultation correctly and properly, there was a further window of opportunity where I could have returned to the Consumer Council, but not to any of the other 46 respondents, such as the North Down council, or the Ulster Unionist party, the Democratic Unionist party or the Social Democratic and Labour party who also submitted responses. At that stage, the only consultee to which I could have gone back for a further engagement was the Consumer Council. I accept that that was possible, and take the judge’s point that I had that opportunity. However, I did not consider it necessary. He has ruled that it was a possibility. I accept that, but I do not accept, having seen some of the reporting, that it was critical in the sense of a matter of life or death. If it had been, the judge could have ordered us not to proceed, which he did not do. The judge issued a balanced and sensible conclusion, which, on that one element, said that there was a further opportunity at the end of the formal consultation period for engagement with one of the respondents, and that we could have taken it. That is fair enough.
Andrew Mackinlay: I have listened carefully to the Minister, and I am exercising my right under the Standing Orders, as somebody who—for whatever reason—has not been appointed by the Whips to this Committee but who wants to speak. The Minister says that members of the Committee have been sent the declaration of the High Court judge. I heard about it only 15 minutes ago from the hon. Member for Foyle (Mark Durkan). I went to the Vote Office yesterday to get the documentation, the explanatory notes and the order, and I went twice today. In the past 15 minutes, I have been again. I looked the staff there straight in the eye and said, “Are there any other documents?” There were none. So the Vote Office is not issuing the declaration.
You might say, Mr. Caton, that the members of the Committee have it. With respect, I remind the Minister that the decision of this Committee is a recommendation to the House. Unfortunately, night after night we rubber stamp measures listed on the Order Paper as “without debate”. However, every Member of the House, all 640-odd of us, is entitled, to go to the Vote Office to get this declaration and to be aware of it. If you went down to the Vote Office now, Mr. Caton, you would not get it. That is not just highly unsatisfactory, it is irregular, and, to put it candidly, it is sticking the tongue out at the High Court judge. I hope that that judge will hear about it. Will the Minister explain why the declaration is not available in the Vote Office?
David Cairns: It is in the Libraries of both Houses. My hon. Friend is a parliamentarian of far greater experience than I am, but as I understand it, the common practice on these occasions—it does not happen very often—is to place the document in the Libraries of both Houses. I understand that that has happened. If it has not happened, I apologise to him, but I believe that it has. We have tried to make the declaration known to the Committee and, by its placement in the Libraries of both Houses, to hon. colleagues.
Dr. William McCrea (South Antrim) (DUP): Surely the Minister has to acknowledge that the declaration, and other recent declarations by the courts, has not brought credit on the Secretary of State or the relevant Department.
David Cairns: I simply do not accept that; consider the sequence of events. The High Court was asked to prevent the order from going ahead. It chose not to do so, although it could have done. It had been presented with 16 charges, some of them very serious. Let me be candid with the hon. Gentleman. If the result had been the other way round—if the High Court had found against the Government on 15 of the 16 counts—we would not be here today; I would not have proceeded with this order. I have not in any way hidden that fact. I have taken incredibly seriously the charges that we did not have a full 12-week consultation period, which we did, that we were partial in our response to some of the respondents, which we were not, and that we did not give adequate consideration to the consultation, which we did. If it had gone the other way, we would not be here today. The fact of the matter is that 16 counts were brought against the Government and one was upheld. I have explained what it was, and I shall not tire the Committee by going through it again. I made the judgment, and indeed the judge made the judgment, that it does not rise to a level that would warrant these proceedings being stopped.
Mark Durkan (Foyle) (SDLP): Further to the point made by my hon. Friend the Member for Thurrock (Andrew Mackinlay), I too checked at the Vote Office. I also made a point of checking at the Library, and it was with some difficulty that the Library staff were eventually able to trace the declaration in the home affairs section and have it faxed to them. The Minister has said a number of times that the Consumer Council sought to injunct parliamentary proceedings. The council had, at an earlier point before the order was laid, tried to injuct its laying. Once it was laid, the Consumer Council at no point asked the High Court to injunct parliamentary proceedings. It asked for a declaration, and a declaration was issued.
David Cairns: I must say that my hon. Friend is clutching at straws. The Consumer Council asked for the order not to be laid, but the judge did not allow that, so we laid it. That is why we are here today. Let us be very clear: if the Consumer Council had been granted what it wanted, we would not be here today, because the judge would not have let us.
I offer one more significant note of clarification, which I want to put on the record. I am advised by my officials that we offered to place the declaration in the Vote Office but were told by the Journal Office that we should not do so and that it should be placed instead in the Libraries of the House. That was what we did. If that was incorrect, I shall apologise, but we went to the proper lengths to draw the matter to the Committee’s attention.
Lembit Öpik (Montgomeryshire) (LD): This is a very important matter. Does the Minister recognise that the Consumer Council has no angle to have a go at the Government? It is simply looking after the interests of consumers, and to that extent the Government have been remiss in not taking its position more seriously. Secondly, to say that the Government were not indicted on 15 of the 16 charges is no argument at all in undermining the importance of the charge of which they were found guilty. Why is the Minister being so cavalier about that charge, which he knows is serious?
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Prepared 29 November 2006