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Lord Whitty: It would still upset the balance between the authority and the consumers. The amendment is not justified.
Baroness Byford: I accept what the Minister has to say in regard to Amendment No. 103. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
Baroness Byford moved Amendment No. 105:
- After Clause 39, insert the following new clause—
The noble Baroness said: In moving Amendment No. 105, I shall speak also to Amendment No. 106. Amendment No. 182 concerns a schedule to the Bill.
In regard to Amendment No. 105, proposed new Section 17AA(1) would rectify the current situation where there is no statutory right of appeal under the Bill, the Reservoirs Act 1975 and the Water Resources Act 1999. We believe that an independent body should be available to consider appeals.
We believe that the proposed system of appeals for companies is not strong enough. The companies have raised with me the question of adequate provision in the Bill of human rights legislation. I beg to move.
Baroness Young of Old Scone: I have a quandary about Amendment No. 105. During the course of this Bill, we seem to be in danger of focusing almost exclusively on the needs of the water companies. However, this amendment would affect far more than simply the water companies. I do not want to comment on the merits or demerits of substituting an appeals tribunal process for current judicial review by the courts. But I doubt severely that the Competition Appeal Tribunal would be an appropriate body for some of the decisions listed or that it should be the body that would appoint other bodies to hear appeals on these occasions.
That might be appropriate for bodies like water companies that are engaged in competitive issues. But many of the individuals or organisations who would be caught by this provision simply are not in that capacity and it would be inappropriate.
Lord Whitty: This rather complex set of amendments would, effectively, create a whole new chapter in what is currently the Water Industry Act. They have a wide range of implications in terms of appeals. Each measure referred to under Amendment No. 182 raises different issues. There is a fundamental issue as to whether appeals under those areas would best be dealt with by keeping the current judicial review in a High Court position rather than establishing a whole new appeals body which covers all of these issues. The difficulty is that any appeals body is bound to have limited expertise and resources to replicate what are, strictly speaking, policy decisions.
The provisions relating to flood plans, water resource management plans, drought plans, special-category effluent and so forth, are all essentially policy decisions of that nature. As the noble Baroness said, they affect a far wider range of players than the water companies and their consumers. In many of these, the Secretary of State issues directions only to set out what
Some issues are best covered by the Environment Agency as the appropriate appeal body; others, as they are primarily policy decisions, are best left to the use of judicial review, as is appropriate in such circumstances when reviewing unreasonable decisions. The purpose of a regulator is to balance the interests of the industry and the consumer and to give a balanced approach both in general and on a case-by-case basis. To have a whole new system of appeal and to extend the appeal to virtually everything covered in the Water Industry Act seems excessive.
In relation to some of the decisions, that would also be seriously counterproductive—for example, proposals and appeal against decisions relating to the disclosure of information. That would obstruct the powers which this Bill is trying to give to the consumer council to publish information in the interests of consumers. I do not think that the appeals mechanism proposed here is appropriate. If there are problems with particular decisions or particular policies, that is a matter for appeal via the courts. The idea that any regulator's decision can be appealed and is, therefore, a second-guess on all of these areas, does not seem to be sensible, given that we have the failsafe of judicial review.
"REGULATORY APPEALS
After section 17 of the WIA there is inserted— "CHAPTER 1A
REGULATORY APPEALS
17AA NOTICE OF APPEAL
(1) This section applies to any decision made by any relevant decision-maker (acting other than in a wholly adjudicatory capacity) under this Act, the Reservoirs Act 1975, the Water Resources Act 1991 or the Water Act 2003 against which there is no statutory right of appeal against the merits of that decision to any independent appeal body.
(2) Without prejudice to the generality of subsection (1), such decisions include any decisions—
(a) relating to the public disclosure of information; or
(b) made under any of the provisions listed under Schedule 16 below.
(3) The Secretary of State may add to the provisions listed under inserted Schedule 16 below by regulations.
(4) Subject to section 17AD(2) below, a person affected by a decision to which this section applies may appeal against it to the Competition Appeal Tribunal or such other relevant body as the Tribunal considers appropriate.
(5) The means of making an appeal is by sending the Competition Appeal Tribunal a notice of appeal in accordance with Competition Appeal Tribunal rules under section 15 of the Enterprise Act 2002.
(6) The notice of appeal must be sent within the period specified, in relation to the decision appealed against, in those rules.
(7) The notice of appeal must set out—
(a) the provision under which the decision appealed against was taken; and
(b) the grounds of appeal.
(8) The grounds of appeal must be set out in sufficient detail to indicate—
(a) to what extent (if any) the appellant contends that the decision appealed against was based on an error of fact or was wrong in law or both; and
(b) to what extent (if any) the appellant is appealing against the exercise of a discretion by the relevant decision-maker.
(9) In this section references to a decision under an enactment—
(a) include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but
(b) include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an
application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty.
(10) For the purposes of this section a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.
17AB DISPOSAL OF APPEAL
(1) The relevant appeal body shall dispose of an appeal under section 17AA in accordance with this section.
(2) The relevant appeal body shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.
(3) The relevant appeal body's decision must include a decision as to what (if any) is the appropriate action for the decision-maker to take in relation to the subject-matter of the decision under appeal.
(4) The relevant appeal body shall then remit the decision under appeal to the relevant decision-maker with such directions (if any) as the relevant appeal body considers appropriate for giving effect to its decision.
(5) The relevant appeal body must not direct the decision-maker to take any action which it would not otherwise have power to take in relation to the decision under appeal.
(6) It shall be the duty of the decision-maker to comply with every direction given under subsection (4).
17AC APPEAL OF DECISION
(1) A decision of the relevant appeal body on an appeal under section 17AA may itself be appealed.
(2) An appeal under this section—
(a) lies to the High Court; and
(b) must relate only to a point of law arising from the decision of the relevant appeal body.
(3) An appeal under this section may be brought by—
(a) a party to the proceedings before the relevant appeal body; or
(b) any other person who has a sufficient interest in the matter.
(4) An appeal under this section requires the permission of the relevant appeal body or of the court to which it is to be made.
17AD INTERPRETATION
(1) In this Chapter— "the relevant appeal body" means the Competition Appeal Tribunal or such other of the following bodies which the Tribunal considers appropriate to hear the appeal—
(a) the Competition Commission;
(b) the Lands Tribunal;
(c) a Government Inspector;
(d) an arbitrator appointed by agreement between the appellant and the decision-maker; and "the relevant decision-maker" means the Director, the Environment Agency, the Secretary of State or the National Assembly for Wales where they take a decision which is appealable under section 17AA.
(2) The Secretary of State may by regulations prescribe the relevant appeal body by which particular types of appeal are to be determined and accordingly with which those appeals are to be lodged.""
XSubject to section 17AD(2) below, a person affected by a decision to which this section applies may appeal against it to the Competition Appeal Tribunal or such other relevant body as the Tribunal considers appropriate".
We suggest that such appeals should be made to the Competition Appeal Tribunal but we are not tied to that one body; they could be made to a person appointed by the Minister to undertake such hearings who would consider the substance of the evidence. The Better Regulation Task Force supports our thoughts on the appeals system.
5.30 p.m.
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