Q1: The Water Supply (Water Quality) Regulations 2018 (SI 2018/647) were laid before the National Assembly for Wales and the UK Parliament on 25 and 30 May 2018 respectively. The EM for that instrument explained that the Regulations were necessary to transpose the requirements of Commission Directive (EU) 2015/1787 and that the transposition deadline of 27 October 2017 had not been met. Our understanding is that SI 2018/706 makes the same changes as SI 2018/647, but with regard to England, rather than Wales. Does it mean that SI 2018/706 has also missed the transposition deadline for Directive 2015/1787? There does not appear to be any reference to this in the EM.
A1: SI 2018/706 (along with SI 2018/707) transposes the requirements of Commission Directive (EU) 2015/1787, which made changes to the Drinking Water Directive 98/83/EC and which had a transposition deadline of 27 October 2017. Laying the SIs occurred later than anticipated due to a number of factors, including the snap general election in June/July 2017 and the unprecedented number of responses to the consultation that the Department received.
Q2: If the deadline has been missed, are there any consequences? For example, will there be any infraction proceedings against the UK as a result?
A2: The UK received a Letter of Formal Notice from the Commission in November last year. This LFN alleged non-notification of our legislation transposing Directive 2015/1787 and signalled the start of infraction proceedings. Since then, we have kept the Commission updated on progress in making the SIs and, to date, it has taken no further steps in proceedings. As the whole of the UK (including Gibraltar) has now transposed the Directive, we expect that the Commission will close the infraction shortly with no lasting consequences to the UK.
Q3: Our understanding is that SI 2018/707 also implements requirements of Directive 2015/1787, so we assume that the transposition deadline has been missed for this instrument as well. Again, there does not seem to be any mentioning of this in the EM, IM or Transposition Note. Is our understanding correct that this instrument is delayed, and will there be any consequences?
A3: Both SIs 2018/706 and 2018/707 transpose Directive 2015/1787, the former in respect of public water supplies and the latter in respect of private water supplies. As mentioned above, the whole of the UK has now transposed the Directive, and we expect that the Commission will close infraction proceedings shortly with no lasting consequences to the UK.
Q4: Paragraph 10.1 of the EM of SI 2018/706 mentions a Regulatory Triage Assessment and suggests that this can be found online but no link is given. Would you be able to provide this link and/or the Assessment?
Q5: It would be helpful to have Defra’s view on the concern that has been expressed in the submission that we have received that because of Defra’s delay, Welsh Ministers, when implementing the Regulations for Wales, have been left with a breach of EU law that they appear to believe was not their own fault.
A5: SI 2018/647 applies to public water supplies that are wholly or mainly in Wales. It followed a similar timetable to that for SI 2018/706, which applies to public water supplies in England, so that the two regimes could align as much as possible when the new legislation came into force. Notwithstanding, it was not essential for the laying of both SIs to coincide, and the Welsh Government was able to make its legislation earlier. This it did in the case of both SIs 2018/647 and 2017/1041 (the latter of which concerned private water supplies in Wales).
27 June 2018