Select Committee on Delegated Powers and Regulatory Reform Fifteenth Report

Annex 1


Letter from the Clerk to the Department for Environment, Food and Rural Affairs

The Committee has given preliminary consideration to this proposal and requests that the Department provide further written information in relation to the matters set out below:


Paragraph 30 of the Statement says that "Section 62 of the Transport Act 1962 requires British Waterways to ensure that any abstraction of water from a waterway does not conflict with any of its obligations, particularly any obligation to maintain a waterway in a navigable condition". This is relied on as being part of the maintenance of necessary protection. But section 62 is about local enactments only. Section 62(2)(b) provides that section 62(1) (which extends the purposes for which the Board may take water under local enactments) shall not be taken as authorising the Board to do certain things, in particular to affect flow levels to a degree which conflicts with its obligations. Please state how equivalent protection is maintained for activities which do not consist of abstraction water in the circumstances specified in section 62(1).


Assuming that borrowing could be regarded as an "activity" for the purposes of section 50(8) of the Transport Act 1968, please explain why borrowing by the joint venture company would count as borrowing by the Board for the purposes of the limit in section 19 of the Transport Act 1962. In particular, is "activities" considered to include not just the act of borrowing but also the extent of borrowing?

Please explain in what way the proposed order is limited to non-subsidiary companies (paragraph 25(b) of the Department's Statement). Is this because section 25(1)(a) of the 1962 Act has always been regarded as having the effect which Leading Counsel now advises that section 50(8) of the 1968 Act may have?

Finally, please indicate whether the proposed order has any implications for the management of the Rivers Tweed and Esk.

31 January 2003

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