Water Bill

Baroness Neville-Rolfe Excerpts

Thursday 6th February 2014 Lords Chamber

Moved by

[Baroness Neville-Rolfe]

122A:After Clause 24, insert the following new Clause—
“Duties of the Secretary of State
The Secretary of State shall take such steps as are necessary to—(a) ensure that bodies carrying out—(i) the provisions of this Act;(ii) water and associated environmental regulations under other Acts;(iii) regulations and codes made under sub-paragraphs (i) and (ii) above; and(iv) equivalent regulations and requirements made under European Union legislation,minimise bureaucratic burdens on affected undertakings and others; and(b) reduce bureaucracy, overlap and waste within the various bodies concerned with water and established by statute or by European Union legislation by defining their respective duties clearly and transparently in one place and on one website.”

[Baroness Neville-Rolfe (Con)]

My Lords, as a new peer—like a new entrant to the water industry—I have been trying to understand this important industry: who does what and where power lies. At Tesco, I was regulated by more than 30 bodies, so I have some experience, but I have found this sector very hard to get my head around. My last job in Whitehall, under my elegant and noble friend Lord Heseltine, was about minimising and improving regulation, occasionally with success. I also worked on land drainage and flood protection in what is now Defra when the Thames Barrier was still being built, so I have great sympathy with my noble friend the Minister today—and for the victims of the floods.

When I look at a regulated area, I always try to think of the impact on business, consumers and others affected, and take a long-term view. From all these perspectives, the scale and complexity of this Bill—all 230 pages of it—worry me. It introduces more competition, which I very much welcome in principle, but we also have a new administrative spoke in the wheel of water management—the market operator, whose role the noble Viscount, Lord Hanworth, sought on Tuesday to bring into the light of day. My amendment would introduce a new clause giving duties to the Secretary of State and seeks to do two things. I will address the second part first because I think no one can object to it. It is about transparency.

I want an explanation and/or map, not on several websites as exist at present, but in one special place that would enable a new entrant, an investor whether in water resources or stocks, to understand the system. I want everyone’s duties set out clearly and transparently in one place. How helpful it would be to find in one place not only the list of bodies that can regulate or affect water and every kind of regulation but also exactly what their powers are and where and when they will be exercised. For example, this explanatory map would explain when the Environment Agency is able to intervene—a concern my noble friend Lady Parminter expressed on Tuesday—or when we can expect the delayed reforms on abstraction to take effect. It would help with the confusion over debt-collection powers, which we have just discussed. That clarity would also reduce overlap and waste. I know from working in business that having clear responsibilities that are well documented and understood cuts waste and improves implementation and compliance. We should of course put the map on the web, perhaps in a special internet app that all of us could download. The web is where enterprising people and new entrants search. It is cheap and easy.

The first part of my amendment is more contentious because it is about changing the way regulators, public servants and their ministerial masters behave. It is a requirement to minimise bureaucracy in every aspect of water, sewerage and abstraction, from negotiating at the highest level in Brussels to creating the humblest code. If lots of agencies and departments operate a cornucopia of rules and regulations, they spend too much time asking undertakers, consumers and each other for the same information, talking to each other and sometimes rowing, writing submissions and guidance, correcting errors and even fighting judicial reviews. Much of that activity is created by confusion and sometimes by inconsistency, which the proposed process would help to prevent. The bureaucratic burdens created cost money. That is not only wasteful but has to be paid for. I suspect that in the water system, with its regulated system of returns through Ofwat, this money often comes from consumers without benefiting anyone else—or it consumes taxpayers’ money, which, with the legacy of the deficit, we cannot afford.

This amendment would require all organisations involved in the governance and administration of water to think in a clearer, simpler way and, I hope, avoid the need for future deregulation and simplification. It should have wide support. I beg to move.

[Lord Crickhowell]

My Lords, my noble friend made a formidable speech at Second Reading in which she launched her assault on overregulation. Already today, dealing with other amendments, a number of noble Lords spoke about the difficulty of following the details of this legislation. I have explained that despite my experience of trying to regulate part of the water industry, I find the Bill almost totally incomprehensible. At Second Reading, I said that it is the most incomprehensible Bill I have come across in 43 years in both Houses. This is partly because it amends two other major pieces of legislation. Indeed, when I struggled to draft some amendments and decided the task was beyond me, I got down from the shelves in the Library one of those earlier Acts and realised that it was not going to get me much further. We have also been debating a series of regulations, some of them not yet known.

Quite clearly, the subject my noble friend has raised is of great importance. It has already been suggested that following the completion of the passage of the Bill the Government must try to bring together in a simple, co-ordinated way the principal points, clauses and requirements of the Bill. That argument has been strengthened, reinforced and added to by my noble friend. Her idea that the principal matters be brought together on a single website is admirable. I do not know whether anything quite like that has ever been done in government before.

The trouble with government departments is that they tend to be very self-contained and self-sufficient. Getting them to work together in a co-ordinated way is sometimes extremely difficult. That makes the job even more difficult for the consumer because if you do not know what the legislation and regulations are and you do not even know the appropriate department dealing with it, you are likely to be lost. Following the passage of the Bill, the Government must give some very careful thought to how the public, small businesses and those who are being regulated are to be brought to understand exactly what they have to do, what benefits may accrue if they do it and what penalties may accrue if they fail to do it.

There is an urgent requirement here, and it should be a priority, but perhaps not of the Minister’s department. I think it goes wider than that. It is probably an issue for the heart of government to see how this should be done. I hope that even if the Minister cannot give an immediate, clear-cut answer—and I suspect he will not be able to—he will undertake to take this matter away to his colleagues and ask that it is looked at by those who have the authority to see that something is done on this matter.

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[Baroness Neville-Rolfe]

My Lords, I am grateful for the trenchant support I have had from this side of the House for my efforts to reduce bureaucracy and promote clarity and transparency, especially from my noble friend Lord Crickhowell. My noble friend Lord Selborne talked about the possibility of the map I proposed being made on a catchment area basis. However, my experience of broadband, where there is a county-by-county map, is that it is not very effective. One of the things I was looking for was to have all the rules, regulations, agencies and requirements in one place on the one website. That can certainly be on the gov.uk website, as the Minister has kindly suggested, but they all need to come together so that a consumer, an investor, or a water undertaker who may be bringing in a new reservoir can see the whole piece. I would find that bottom-up approach hugely valuable. I feel that the documents that have already been made available are a start, but they do not—

[Lord De Mauley]

I thought I had said that they are on the website.

[Baroness Neville-Rolfe]

They are, but I was suggesting that we have a website that brought all the different things together in one place, not just the helpful notes that the Minister has put forward, and which takes people through the rules.

I am extremely grateful for the Minister’s support in reducing bureaucracy and in outlining the different things that have been done to achieve that end. However, it is all the more important to bring the various requirements together to make it clear what is happening. We could bring about a quiet revolution of clarity and transparency and make entry into the industry much less forbidding if we could bring what is being set out in these different laws and by these different agencies into one place. Of course I welcome the idea of putting those on to one website, but I will study what the Minister has said and consider whether further thought needs to be given to how that might be done, to find a way forward. Perhaps we can also do some policy formation in the Bishops’ Bar. I thank my noble friend, and I beg leave to withdraw the amendment.

Amendment 122A withdrawn.

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[Lord Spicer]

My Lords, this is pretty standard stuff: first you legislate to weaken competition, which is the true protector of the consumer; then you legislate for consumer rights. That way lies socialism.

[Baroness Neville-Rolfe]

My Lords, perhaps I could seek clarification about the effect of the amendment, which it seems concerns individual complaints as well as collective ones. As I see it, having been in business, complaints are normally dealt with by the business or authority to which they come. You do not want to have special schemes unless there is something pretty serious and bad. I want to understand the purport of this amendment—if it is actually bringing in a whole load of new things that are going to be done by an authority or statute rather than by the company that is meant to be doing the right thing for the consumer, I am concerned.

[Baroness Northover]

My Lords, I thank the noble Lord, Lord Whitty, for his amendments, which, as he laid out, relate to the vital question of consumer protection. Most noble Lords, bar one, seemed to be supportive of his emphasis. We all wish to see an increasingly consumer-focused water industry and we welcome the opportunity to debate these matters.

The noble Lord thinks that, at the moment, this provision applies only to a single claimant. I will address whether the consumer redress scheme includes complaints made by groups of customers as well as complaints made by individual ones. I can clarify that the ability to address consumer complaints, whether they relate to a single customer or to a group of customers, is already reflected in this clause, which is drafted in such a way as to be inclusive rather than exclusive. To be clear, it covers complaints by both individual customers and groups of customers collectively—I want to put that very clearly on the record. The noble Lord might like to know that CCWater has already successfully taken up complaints on behalf of groups of customers, for example in a conurbation where a number of neighbours wished to challenge their surface water drainage charges. I hope, therefore, that he is reassured on the first area that he flagged up here.

On Amendment 136, we agree that consumer protection is an important matter in the context of the Bill. I also put on record and inform noble Lords that this is an area where action is already being taken. The industry, Ofwat and the Consumer Council for Water are working together to improve their collective approach to consumer redress. An independent dispute-resolution scheme is being established to give all customers an independent route for resolving their complaints without having to go to court. The new scheme aims to provide a transparent mechanism for resolving complaints that have reached a deadlock under current arrangements. Work on this scheme is already well advanced, with all the water companies having signalled their support, and I note what my noble friend Lady Neville-Rolfe said about the industry being central to this.

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[Lord Whitty]

My Lords, rather late in the day we are approaching a rather important issue, which concerns the powers of Ofwat to reopen a price review within five years if circumstances change or if information received from companies on their performance raises serious issues. Considering Ofwat’s role in a more dynamic market, this seems very important.

At present, we set the price maxima for five years. Companies can reopen the five-year settlement if circumstances change; for example, if they need to expend more capital than was allowed for in the price review, they can go back in. Thames Water went back in to see Ofwat about additional money for the super-sewer. It was knocked back by Ofwat but it had the right to ask. I imagine that companies do not do it more often because if the company reopens the price settlement, Ofwat has the right to reopen it as well. It is not a big feature but I am arguing that there should be an equivalence.

Ofwat does not have the power to initiate a reopening. It uses informal powers, and has been quite successful in negotiating with some companies over the current five-year period for reductions in prices because of changed circumstances—mainly reflecting the fact that the cost of capital was significantly less in practice than had been allowed for when the price review was concluded. In reality, as my noble friend Lord Hanworth has pointed out more than once, that allowance for capital has permitted a significant degree of profit enhancement and dividend enhancement by companies, and it is important that Ofwat keeps an eye on this.

Amendment 137 would allow Ofwat to reopen the settlement if it thought that the way in which it was operating was no long appropriate to the economic circumstances, or that the company’s own behaviour gave it cause to reopen it because the terms of the settlement were no longer appropriate. Amendment 146 would provide some background for this. It would require water undertakers to provide information to Ofwat on a regular, annual basis on their financial affairs. This could be dealt with separately from the other amendment, but we have grouped them together for these purposes and there is an interrelationship. If this is a different provision from the very detailed cost breakdown that Ofwat now requires from companies in advance of the price review every five years, and if we move to a more competitive market, the details of that form of regulation may not have to be so onerous over time.

This amendment looks at how companies perform during the price period. It will provide a big picture of how the financial operation as a whole is working out. As we have constantly reiterated, there is a problem in this industry of a vertically integrated regional monopoly, with higher levels of gearing, dividends—they have been at over 90% of income over the past few years—and rates of return on assets, in a relatively low-risk industry, paying relatively low levels of taxation. There are issues about the totality of the finances of the sector that a regulator ought to be free to query. It certainly should have information on it. Your Lordships may have heard a recent programme about this on the BBC’s “File on 4”. I did not agree with all of it, but it pointed out, for example, that some of these companies have at least seven levels of executive decisions before reaching the real decision-makers at ownership level. That applied to Thames Water in particular.

It is important that Ofwat can challenge the way in which these companies conduct their financial affairs. Amendment 146 would provide it with the information for doing so and Amendment 137 would allow it to reopen the price settlement if it saw that there were serious and endemic concerns about the way in which a company was operating, or about changes in the cost of capital or the level of corporate internal transfer pricing and so forth. It is important that Ofwat understands the total system and it is important that it has the ability to reopen the settlement. Of late, water companies have received fairly bad publicity because of their overall financial structure. At the moment, the regulatory system cannot really address that and does not have the information needed in order to address it. This is a gap in Ofwat’s powers that needs to be filled. I beg to move.

[Baroness Neville-Rolfe]

My Lords, we should look very carefully at this proposal for an increase in regulation. Water and sewerage are long-term matters and the great need is to have investment in resilience, with the right and proper regulatory framework. Ofwat seems to have got tougher in recent times. It is right to have a five-year timescale or we will not get the investment that is needed for resilience. The entrepreneurs involved will assume that if profits go up, perhaps because they have improved efficiency, they will immediately get a call from Ofwat reopening the five-year settlement, triggered perhaps by articles in tabloid newspapers—the sort of thing that will not be good for investment in this vital industry.

[Lord Moynihan]

I support that view. I completely understand where the noble Lord, Lord Whitty, is coming from, but there is a serious potential risk here to the confidence of the investment community in the water market. I hope that my noble friend takes that into account when considering extending the reasons for opening up price reviews.