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Draft Water Services (Scotland) Bill
Consultation on Proposed Provisions

Section B: text of draft Bill

Water Services (Scotland) Bill

CONSULTATION DRAFT

CONTENTS

Section

Part 1

PUBLIC WATER SUPPLY AND SEWERAGE SYSTEMS: OFFENCES AND MAIN DEFINITIONS

1 Public water supply system: offences
2 Meaning of "public water supply system"
3 Public sewerage system: offences
4 Meaning of "public sewerage system"

Part 2

PROVISION OF WATER AND SEWERAGE SERVICES TO ELIGIBLE PREMISES

Water services and sewerage services licences

5 Licence authorisation
6 Meaning of "eligible premises"
7 Granting of licence
8 Compliance with licences
9 Commissioner’s power to obtain information and charge fees
10 Licences and compliance: further provision

Provision of and charging for services by Scottish Water

11 Provision of services by Scottish Water
12 Continuation of provision of services
13 Discontinuation of supply of water
14 Scottish Water’s charges schemes

The Water Industry Commissioner for Scotland

15 The Commissioner’s general function

Part 3

MISCELLANEOUS AND GENERAL

Miscellaneous

16 Offences by bodies corporate and partnerships

General

17 Orders and regulations
18 Ancillary provision
19 Interpretation
20 Short title and commencement

__________

Schedule –Licences and compliance: further provision

CONSULTATION DRAFT

Water Services (Scotland) Bill

An Act of the Scottish Parliament to create offences in relation to the unauthorised use of the public water and sewerage systems; to allow the Water Industry Commissioner for Scotland to grant licences authorising the provision of certain water and sewerage services by persons other than Scottish Water; and for connected purposes.

Part 1

PUBLIC WATER SUPPLY AND SEWERAGE SYSTEMS: OFFENCES AND MAIN DEFINITIONS

1 Public water supply system: offences

(1) Any person (other than Scottish Water or a person acting on its behalf) who introduces water into the public water supply system is guilty of an offence.

(2) Any person (other than Scottish Water or a person acting on its behalf) who uses the public water supply system for the purposes of supplying water to the premises of another person is guilty of an offence.

(3) Any person (other than Scottish Water or a person acting on its behalf) who makes arrangements for or in relation to the supply of water to the premises of another person through the public water supply system otherwise than authorised by a water services licence held by the person is guilty of an offence.

(4) The Scottish Ministers may by regulations–

(a) specify circumstances in which subsection (1), (2) or (3) does not apply; or
(b) specify that subsection (1), (2) or (3) does not apply–

(i) to any person or category of person; and
(ii) to such extent and subject to such conditions,
as may be specified in the regulations.

(5) The Scottish Ministers are to consult–

(a) Scottish Water;
(b) the Commissioner; and
(c) such other persons as they consider appropriate,
on any regulations they propose to make under subsection (4).

(6) A person who is guilty of an offence under subsection (1) is liable–

(a) on summary conviction, to a fine not exceeding £20,000; or
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

(7) A person who is guilty of an offence under subsection (2) or (3) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.

(8) Any contract or other agreement which involves a contravention of subsection (1), (2) or (3) is unenforceable.

2 Meaning of "public water supply system"

(1) In this Act, the "public water supply system" means any and all of the mains and other pipes, water treatment works and other similar infrastructure which are (either or both)–

(a) vested in Scottish Water; or
(b) used (by Scottish Water or on its behalf) in the exercise of Scottish Water’s core functions as respects the supply of water.

(2) In subsection (1), "mains" is to be construed in accordance with section 109(1) (interpretation) of the 1980 Act.

3 Public sewerage system: offences

(1) Any person (other than Scottish Water or a person acting on its behalf) who draws sewage from the public sewerage system is guilty of an offence.

(2) Any person (other than Scottish Water or a person acting on its behalf) who uses the public sewerage system for the provision of sewerage to, or disposal of sewage from, the premises of another person is guilty of an offence.

(3) Any person (other than Scottish Water or a person acting on its behalf) who makes arrangements for or in relation to the provision of sewerage to, or disposal of sewage from, the premises of another person through the public sewerage system otherwise than authorised by a sewerage services licence held by the person is guilty of an offence.

(4) The Scottish Ministers may by regulations–

(a) specify circumstances in which subsection (1), (2) or (3) does not apply; or
(b) specify that subsection (1), (2) or (3) does not apply–

(i) to any person or category of person; and
(ii) to such extent and subject to such conditions,
as may be specified in the regulations.

(5) The Scottish Ministers are to consult–

(a) Scottish Water;
(b) the Commissioner; and
(c) such other persons as they consider appropriate,
on any regulations they propose to make under subsection (4).

(6) A person who is guilty of an offence under subsection (1) is liable–

(a) on summary conviction, to a fine not exceeding £20,000; or
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

(7) A person who is guilty of an offence under subsection (2) or (3) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.

(8) Any contract or other agreement which involves a contravention of subsection (1), (2) or (3) is unenforceable.

(9) In this Act, "sewage" is to be construed in accordance with section 59(1) (interpretation) of the 1968 Act.

4 Meaning of "public sewerage system"

(1) In this Act, the "public sewerage system" means any and all of the sewers (and junctions therewith), drains, SUD systems, sewage treatment works and other similar infrastructure which are (either or both)–

(a) vested in Scottish Water; or
(b) used (by Scottish Water or on its behalf) in the exercise of Scottish Water’s core functions as respects the provision of sewerage or disposal of sewage.

(2) In subsection (1)–
"sewers", "SUD systems" and "sewage treatment works" are to be construed in accordance with section 59(1) (interpretation) of the 1968 Act; and
"junctions" is to be construed in accordance with section 16 (vesting of sewers and other works) of that Act.

Part 2

PROVISION OF WATER AND SEWERAGE SERVICES TO ELIGIBLE PREMISES

Water services and sewerage services licences

5 Licence authorisation

(1) The Commissioner may, subject to section 7 and paragraphs 1 and 2 of the schedule, grant a licence authorising a person–

(a) to–

(i) make arrangements with the occupier of any eligible premises for the supply of water to the premises through the public water supply system; and
(ii) fix, demand and recover charges for the supply of water to any premises in respect of which the person has made such arrangements;

(b) to provide goods and services ancillary to the things mentioned in paragraph (a) and fix, demand and recover charges for providing them; and
(c) to make such arrangements with Scottish Water and such other persons as are necessary for the purposes of or in connection with the things mentioned in paragraphs (a) and (b).

(2) A licence granted under subsection (1) is in this Act referred to as a "water services licence"; and a person who holds a water services licence is in this Act referred to as a "water services provider".

(3) The Commissioner may, subject to section 7 and paragraphs 1 and 2 of the schedule, grant a licence authorising a person–

(a) to–

(i) make arrangements with the occupier of any eligible premises for the provision of sewerage to, or the disposal of sewage from, the premises through the public sewerage system; and
(ii) fix, demand and recover charges for the provision of sewerage to, and disposal of sewage from, any premises in respect of which the person has made such arrangements;

(b) to provide services ancillary to the things mentioned in paragraph (a) and fix, demand and recover charges for providing them; and
(c) to make such arrangements with Scottish Water and such other persons as are necessary for the purposes of or in connection with the things mentioned in paragraphs (a) and (b).

(4) A licence granted under subsection (3) is in this Act referred to as a "sewerage services licence"; and a person who holds a sewerage services licence is in this Act referred to as a "sewerage services provider".

6 Meaning of "eligible premises"

(1) In this Act, "eligible premises" means–

(a) in relation to the supply of water, premises which are connected to the public water supply system; and
(b) in relation to the provision of sewerage or the disposal of sewage, premises which are connected to the public sewerage system,
but not any dwelling.

(2) In subsection (1), "dwelling" means any dwelling within the meaning of Part II (Council Tax: Scotland) of the Local Government Finance Act 1992 (c.14).

(3) The Scottish Ministers may by order modify subsection (2) so as to vary the meaning of "dwelling".

7 Granting of licence

(1) The Commissioner may grant a water services licence or a sewerage services licence only if satisfied that the applicant has the ability to perform adequately the activities authorised by the licence.

(2) In assessing an applicant’s ability so to perform those activities, the Commissioner is to have special regard to the following factors (in so far as relevant in relation to the performance of those activities)–

(a) knowledge, expertise and experience; and
(b) financial acumen and business viability,
and such other matters as the Scottish Ministers may by order specify.

(3) The Commissioner may issue guidance (either generally or in a particular case or class of case) in relation to the things mentioned in subsection (2).

(4) A water services licence and a sewerage service licence–

(a) must be in writing; and
(b) unless revoked or suspended, continues in force for such period as may be specified in or determined by or under the licence.

(5) As soon as practicable after refusing an application for a water services licence or a sewerage services licence, the Commissioner is to intimate the refusal to–

(a) the applicant; and
(b) Scottish Water.

(6) As soon as practicable after granting a water services licence or a sewerage services licence, the Commissioner is to send a copy of the licence to–

(a) the person to whom it is granted; and
(b) Scottish Water.

8 Compliance with licences

(1) The Commissioner is to–

(a) monitor compliance with the terms and conditions of water services licences and sewerage services licences; and
(b) take such steps as the Commissioner considers are necessary for the purposes of ensuring that the terms and conditions of such licences are complied with.

(2) The Commissioner may give directions to any water services provider or sewerage services provider for the purpose of ensuring that the provider complies with the terms and conditions of the provider’s licence; and the provider must comply with any such directions.

(3) The Commissioner may issue guidance (either generally or in a particular case or class of case) in relation to compliance with the terms and conditions of water services licences and sewerage services licences.

(4) Scottish Water must report to the Commissioner any contravention of a term or condition of a water services licence or a sewerage services licence which appears to it to have occurred or be occurring.

9 Commissioner’s power to obtain information and charge fees

(1) Water services providers and sewerage services providers must provide the Commissioner with such information (including information in the form of a document) as the Commissioner reasonably requires in the exercise of the Commissioner’s functions.

(2) Subsection (1) does not authorise the Commissioner to require the disclosure of anything that a person would be entitled to refuse to disclose on grounds of confidentiality in proceedings in the Court of Session.

(3) Any person who fails, without reasonable excuse, to provide information required by the Commissioner under subsection (1) is guilty of an offence.

(4) A person who is guilty of an offence under subsection (3) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on indictment, to a fine.

(5) The Commissioner may charge such fees, for such matters in relation to water services licences and sewerage services licences, as the Scottish Ministers may by order prescribe.

10 Licences and compliance: further provision

The schedule makes further provision regarding licences and compliance with licences.

Provision of and charging for services by Scottish Water

11 Provision of services by Scottish Water

(1) Where a water services provider has made arrangements with the occupier of eligible premises for the supply of water to the premises, the provider may request Scottish Water to supply (or continue to supply) water through the public water supply system to the premises.

(2) Scottish Water must supply water as so requested subject to agreement between Scottish Water and the provider as to the terms and conditions that are to apply in relation to that supply.

(3) A duty to supply water under subsection (2)–

(a) ceases if–

(i) the arrangements mentioned in subsection (1) have come to an end (unless the duty is continued under section 12(1)); or
(ii) the supply is discontinued under section 13(6); and

(b) may be superseded by a new duty under subsection (2).

(4) Where a sewerage services provider has made arrangements with the occupier of eligible premises for the provision of sewerage to, or disposal of sewage from, the premises, the provider may request Scottish Water to provide (or continue to provide) sewerage to, or dispose of (or continue to dispose of) sewage from, the premises through the public sewerage system.

(5) Scottish Water must provide sewerage and dispose of sewage as so requested subject to agreement between Scottish Water and the provider as to the terms and conditions that are to apply in relation to that provision or disposal.

(6) A duty to provide sewerage or dispose of sewage under subsection (5) may be superseded by a new duty under that subsection.

(7) Where no agreement as is mentioned in subsection (2) or (5) is reached, the Commissioner, on the application of the provider in question, may determine the terms and conditions that are to apply in relation to the supply or, as the case may be, provision or disposal; and those terms and conditions have effect as if agreed between the provider and Scottish Water.

12 Continuation of provision of services

(1) Where–

(a) water is supplied to premises by Scottish Water under subsection (2) of section 11; and
(b) the arrangements for the supply of water made between the occupier of the premises and the water services provider who made the request under subsection (1) of that section in respect of the premises have come to an end–

(i) due to the revocation or suspension of the licence held by the provider; or
(ii) for any other reason (except where the supply is discontinued under section 13(6)),
the duty of Scottish Water under subsection (2) of section 11 to supply water to the premises continues for the period mentioned in subsection (2).

(2) The period is 2 months (or such longer period as Scottish Water agrees to) from the date on which the arrangements mentioned in subsection (1)(b) came to an end.

(3) But that continuation of that duty ceases if–

(a) it is superseded by a new duty under subsection (2) of section 11; or
(b) the occupier of the premises notifies Scottish Water that the supply of water is not required.

(4) Where sewerage is provided to, or sewage is disposed of from, premises by Scottish water under subsection (5) of section 11, Scottish Water is to continue providing sewerage or (as the case may be) disposing of sewage from the premises even if the arrangements for that provision or disposal made between the occupier of the premises and the sewerage services provider who made the request under subsection (4) of that section in respect of the premises have come to an end.

(5) In section 9 (supply of water for non-domestic purposes) of the 1980 Act, after subsection (2), there is inserted–

"(2A) Where a supply of water has been made to premises under subsection (2) of section 11 of the Water Services (Scotland) Act 2003 (asp 00) but–

(a) the arrangements for the supply made between the occupier of the premises and the water services provider who made the request under subsection (1) of that section in respect of the premises are at an end (or are to come to an end) in consequence of non-payment of charges owed to the provider in relation to the water supplied; or
(b) the supply is discontinued (or is to be discontinued) under section 13(6) of that Act,

Scottish Water shall not be required to give a supply of water to the premises in accordance with subsection (1) if it is of the opinion that there is no reasonable prospect of recovering the charges (or any significant proportion of the charges) which it would be entitled to recover in relation to that supply of water were it given.

(2B) Where Scottish Water decides, by virtue of subsection (2A), not to give a supply of water to premises, the occupier of the premises may by notice require the Water Industry Commissioner for Scotland to review that decision.

(2C) In a review under subsection (2B), the Commissioner may, having regard to any representations made to him by the parties–

(a) confirm the decision of Scottish Water; or
(b) direct Scottish Water to give a supply of water to the premises in accordance with subsection (1),
and the determination of the Commissioner in the review shall be final.".

13 Discontinuation of supply of water

(1) Where–

(a) a water services provider has obtained a court decree in respect of charges owed to the provider in relation to water supplied to premises under subsection (2) of section 11; and
(b) the decree has not been complied with,
the water services provider may request Scottish Water to discontinue the supply of water under that subsection to the premises.

(2) At least 7 days before making a request under subsection (1) the provider must serve a notice of the provider’s intention to make such a request on–

(a) the occupier of the premises;
(b) Scottish Water; and
(c) the Commissioner.

(3) The notice must be in such form and contain such particulars as the Scottish Ministers may by order prescribe.

(4) Where a notice is served in accordance with subsection (2) the provider must at the same time provide a certified copy of the decree mentioned in subsection (1).

(5) An occupier of premises who has been served with a notice under subsection (2) may, within 5 days of the date of service of the notice, make representations to the provider about the notice; and the provider must have regard to any representations so made.

(6) Where a request is made under subsection (1), Scottish Water is to discontinue the supply of water made under section 11(2) to the premises provided that–

(a) any supply of water to the premises for domestic purposes; or
(b) any supply of water to any other premises,
is not adversely affected.

(7) In subsection (6)(a), what is a supply of water for domestic purposes is to be construed in accordance with section 7 (supply of water for domestic purposes) of the 1980 Act.

14 Scottish Water’s charges schemes

(1) After section 29 (charges for goods and services) of the 2002 Act, there is inserted–

"29A Charges for services arranged by licensed providers

(1) Supplies of water provided to any premises by Scottish Water under subsection (2) of section 11 of the Water Services (Scotland) Act 2003 (asp 00) are to be treated, for the purposes of sections 29 and 31, as services provided to the water services provider who made the request under subsection (1) of that section in respect of the premises.

(2) The provision of sewerage to, and disposal of sewage from, any premises by Scottish Water under subsection (5) of that section of that Act are to be treated, for the purposes of sections 29 and 31, as services provided to the sewerage services provider who made the request under subsection (4) of that section in respect of the premises.

(3) But where–

(a) the supplies of water provided to the premises are continued under subsection (1) of section 12 of that Act, subsection (1) does not apply;
(b) the provision of sewerage to, or disposal of sewerage from, the premises is continued under subsection (4) of that section, subsection (2) does not apply.".

(2) In section 31 (charges schemes) of that Act, after subsection (3) there is inserted–

"(3A) Without prejudice to subsection (3)(a), a charges scheme may make special provision for and in relation to charges to be paid for services provided by Scottish Water to water services providers and sewerage services providers (within the meaning of the Water Services (Scotland) Act 2003 (asp 00)).

(3B) In particular, any such special provision may specify reasonable additional charges to be paid by–

(a) water services providers as contributions towards the costs incurred by Scottish Water in the exercise of its core functions as respects the supply of water as a whole; and
(b) sewerage services providers as contributions towards the costs incurred by Scottish Water in the exercise of its core functions as respects the provision of sewerage and disposal of sewage as a whole.".

(3) After section 33 (Commissioner’s advice on charges) of that Act there is inserted–

"33A Exercise of functions under sections 31 to 33

Scottish Water is to exercise its functions under section 31, and the Commissioner is to exercise the Commissioner’s functions under sections 32 and 33–

(a) with a view to ensuring that–

(i) the costs incurred by Scottish Water in supplying water to any premises under subsection (2) of section 11 of the Water Services (Scotland) Act 2003 (asp 00) are met from charges recovered by it from the water services provider who made the request under subsection (1) of that section in respect of the premises; and
(ii) the costs incurred by Scottish Water in providing sewerage to, or disposing of sewage from, any premises under subsection (5) of that section of that Act are met from charges recovered by it from the sewerage services provider who made the request under subsection (4) of that section in respect of the premises; and

(b) with regard to the desirability of–

(i) the costs incurred by Scottish Water in exercising its core functions as respects the supply of water as a whole being met from charges recovered by it from its customers (including water services providers within the meaning of the Water Services (Scotland) Act 2003 (asp 00)) in respect of the provision of services to them in the exercise of those functions; and
(ii) the costs incurred by Scottish Water in exercising its core functions as respects the provision of sewerage and disposal of sewage as a whole being met from charges recovered by it from its customers (including sewerage services providers within the meaning of that Act) in respect of the provision of services to them in the exercise of those functions.".

(4) In section 35 (liability of occupiers etc. for charges) of that Act, after subsection (9) there is inserted–

"(10) This section does not apply to or in relation to any service provided by Scottish Water under section 11 of the Water Services (Scotland) Act 2003 (asp 00) except where the provision of the service is continued under section 12(1) or (4) of that Act.".

The Water Industry Commissioner for Scotland

15 The Commissioner’s general function

In section 1 (Water Industry Commissioner for Scotland) of the 2002 Act, in subsection (2), for the words from "promoting" to the end there is substituted "promoting–

(a) the interests of customers (excluding water services providers and sewerage services providers within the meaning of the Water Services (Scotland) Act 2003 (asp 00)) of Scottish Water in relation to the provision of services by it in the exercise of its core functions; and
(b) the interests of customers of water services providers and sewerage services providers (within the meaning of that Act) in relation to the provision of services by–

(i) such providers; and
(ii) Scottish Water in the exercise of its core functions,
by virtue of that Act.".

Part 3

MISCELLANEOUS AND GENERAL

Miscellaneous

16 Offences by bodies corporate and partnerships

(1) Where an offence under this Act has been committed by a body corporate and has been committed with the consent or connivance of, or is attributable to the neglect of, a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, that person as well as the body corporate is guilty of the offence.

(2) Where an offence under this Act has been committed by a Scottish partnership and has been committed with the consent or connivance of, or is attributable to the neglect of, a partner, that partner as well as the partnership is guilty of the offence.

General

17 Orders and regulations

(1) Any power of the Scottish Ministers to make orders or regulations under this Act is exercisable by statutory instrument.

(2) Any such power includes power to make–

(a) such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers consider necessary or expedient; and
(b) different provision for different purposes.

(3) A statutory instrument containing an order under–

(a) section 6(3), 7(2), 9(5) or 13(3);
(b) subject to subsection (4)(a), section 18; or
(c) paragraph 1(1), (4) or (7) or 10(1) or (2)(g) of the schedule,
is subject to annulment in pursuance of a resolution of the Parliament.

(4) A statutory instrument containing–

(a) an order under section 18 which amends an Act; or
(b) regulations under section 1(4) or 3(4),
is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

18 Ancillary provision

The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of or in consequence of this Act.

19 Interpretation

(1) In this Act, unless the context otherwise requires–

"the 1968 Act" means the Sewerage (Scotland) Act 1968 (c. 47);
"the 1980 Act" means the Water (Scotland) Act 1980 (c. 45);
"the 2002 Act" means the Water Industry (Scotland) Act 2002 (asp 3);
"the Commissioner" means the Water Industry Commissioner for Scotland;
"the Parliament" means the Scottish Parliament.

(2) Any reference in this Act to the core functions of Scottish Water is to be construed by reference to section 70(2) of the 2002 Act.

20 Short title and commencement

(1) This Act may be cited as the Water Services (Scotland) Act 2003.

(2) The provisions of this Act, except sections 17 to 19 and this section, come into force on such day as the Scottish Ministers may by order appoint.

(3) Different days may be so appointed for different provisions and for different purposes.

SCHEDULE

(introduced by section 10)

LICENCES AND COMPLIANCE: FURTHER PROVISION

Application for licence

1 (1) An application for a water services licence or a sewerage services licence is to be made to the Commissioner and is–
(a) to be in such form and made in such manner; and
(b) to contain such information (including information in the form of a document),
as the Scottish Ministers may by order prescribe.

(2) The applicant must provide the Commissioner with such further information (including information in the form of a document) as the Commissioner reasonably requires in order to determine the application.

(3) Sub-paragraph (2) does not authorise the Commissioner to require the disclosure of anything that a person would be entitled to refuse to disclose on grounds of confidentiality in proceedings in the Court of Session.

(4) The applicant must, in such manner and within such time from the making of the application as the Scottish Ministers may by order prescribe, publish a notice of the application; and the notice must–

(a) specify such procedure for making representations to the Commissioner with respect to the application; and
(b) contain such other particulars,
as the Scottish Ministers may so prescribe.

(5) Where the Commissioner proposes to refuse an application, the Commissioner is to give the applicant notice–

(a) of that fact (together with the Commissioner’s reasons for proposing to refuse the application); and
(b) specifying the date by which the applicant may make representations to the Commissioner with respect to the proposed refusal.

(6) The Commissioner is, in determining the application, to have regard to any representations made by virtue of–

(a) sub-paragraph (4)(a); and
(b) sub-paragraph (5)(b).

(7) The Scottish Ministers may by order specify circumstances in which sub-paragraphs (4) to (6) do not apply.

(8) Any applicant for a water services licence or a sewerage services licence who knowingly or recklessly makes a statement, in connection with the application for the licence, that is false or misleading in a material particular is guilty of an offence.

(9) A person who is guilty of an offence under sub-paragraph (8) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on indictment, to a fine.

(10) A person whose application for a water services licence or sewerage services licence has been refused may, within 14 days of the date on which the refusal was intimated to the person under section 7(5)(a), appeal to the Court of Session against the refusal.

(11) Where a water services licence or sewerage services licence has been granted, Scottish Water may, within 14 days of the date on which a copy of the licence was sent to Scottish Water under section 7(6)(b), appeal to the Court of Session against the granting of the licence; and the licence is suspended until the appeal is withdrawn or finally determined.

(12) In an appeal under sub-paragraph (10) or (11), the Court may quash or confirm the Commissioner’s decision to refuse or (as the case may be) grant the application; and the decision of the Court in the appeal is final.

Conditions of licence

2 (1) Each water services licence and sewerage services licence–

(a) is, subject to sub-paragraph (10), to have incorporated in it by reference to the standard conditions such of those conditions as are applicable to it; and
(b) may include such ordinary conditions as appear to the Commissioner to be necessary or expedient for the purposes of or in connection with the activities authorised by the licence.

(2) The Commissioner is, within 9 months of the coming into force of this sub-paragraph, to determine standard conditions that are to apply to water services licences and sewerage services licences.

(3) The standard conditions are to relate to the obligations of water services providers and sewerage services providers to their customers and to Scottish Water; and the conditions may, in particular–

(a) include such conditions that are to apply to–

(i) all licences; and
(ii) a particular class of licence; and

(b) make provision for–

(i) the conditions (or any of them) not to apply to a particular licence or class of licence in such circumstances; and
(ii) the coming into effect and suspension of the conditions (or any of them) in such manner and in such circumstances,
as may be specified in the conditions.

(4) The Commissioner is to–

(a) consult the Scottish Ministers on proposals for standard conditions; and
(b) publish the standard conditions.

(5) The Commissioner–

(a) is from time to time to review the standard conditions; and
(b) may–

(i) modify the standard conditions; and
(ii) make such modification to the conditions of any licence as the Commissioner considers necessary or expedient as a consequence of any modification of the standard conditions.

(6) Before making any modification under sub-paragraph (5)(b), the Commissioner is to–

(a) send a notice of the proposed modification to–

(i) every water services provider and sewerage services provider whose licence would be affected by the modification;
(ii) the Scottish Ministers; and
(iii) Scottish Water; and

(b) publish the notice.

(7) The notice must–

(a) state the reasons why the modification is proposed; and
(b) specify the period (which is to be not less than 28 days from the date of publication of the notice) within which representations with respect to the proposed modification may be made to the Commissioner.

(8) The Commissioner is to have regard to any representations made by virtue of sub-paragraph (7)(b).

(9) Where the Commissioner modifies the standard conditions, the Commissioner is to publish them as modified.

(10) The Commissioner may, in granting a particular licence, exclude or modify any of the standard conditions to such extent as the Commissioner considers appropriate in the circumstances of the case.

(11) Sub-paragraphs (6) to (8) apply to exclusions and modifications under sub-paragraph (10) as they apply to modifications under sub-paragraph (5)(b) (but as if, in the case of an exclusion, the references in sub-paragraphs (6) and (7) to modification were references to exclusion).

(12) Any ordinary condition of a licence may provide for the condition to–

(a) have effect or cease to have effect; or
(b) be modified,
at such time, in such manner, and in such circumstances, as the Commissioner considers appropriate.

(13) The Commissioner may modify any condition of a particular licence if the Commissioner considers that the modification is necessary in the circumstances of the case.

(14) Sub-paragraphs (6) to (8) apply to modifications under sub-paragraph (13) as they apply to modifications under sub-paragraph (5)(b).

(15) Any water services provider or sewerage services provider who is aggrieved by the inclusion of a condition in the licence held by the provider may, within 14 days of the date on which the licence was granted, appeal to the Court of Session against the inclusion of the condition on the grounds that the condition is unreasonable in the circumstances of the case.

(16) Any water services provider or sewerage services provider who is aggrieved by a modification of a condition included in the licence held by the provider may, within 14 days of the date on which the modification has effect, appeal to the Court of Session against the making of the modification on the grounds that the condition as modified is unreasonable in the circumstances of the case.

(17) In an appeal under sub-paragraph (15) or (16), the Court may quash, confirm or vary the condition; and the decision of the Court in the appeal is final.

Transfer of licence

3 (1) Any water services licence or sewerage services licence may, subject to sub-paragraph (2), be transferred to another person by the provider who holds it ("the transferor"), either in respect of–

(a) all the activities; or
(b) any particular activity or activities,
authorised by the licence.

(2) A transfer of a licence is not valid unless–

(a) the transfer complies with any condition of the licence as to transfer; and
(b) the Commissioner consents to the transfer.

(3) The Commissioner may consent to a transfer only if satisfied that–

(a) in a case where the proposed transfer is in respect of all the activities authorised by the licence, the person to whom the transferor proposes to transfer the licence ("the transferee") has the ability to perform adequately those activities; or
(b) in a case where the proposed transfer is in respect of any particular activity or activities authorised by the licence, the transferee has the ability to perform adequately that activity or (as the case may be) those activities.

(4) In assessing the transferee’s ability so to perform that activity or those activities, the Commissioner is to have special regard to–

(a) the factors mentioned in paragraphs (a) and (b) of subsection (2) of section 7; and
(b) any other matters specified under that subsection.

(5) Before consenting to a transfer, the Commissioner is to–

(a) send a notice of the proposed transfer to Scottish Water; and
(b) publish the notice.

(6) The notice must–

(a) give the particulars of the transferor and transferee;
(b) state the reasons why the transfer is proposed;
(c) specify any modification or condition that the Commissioner proposes to make under sub-paragraph (8) and state the reasons why it is proposed; and
(d) specify the period (which is to be not less than 28 days from the date of publication of the notice) within which representations with respect to the proposed transfer (including any such modification or condition) may be made to the Commissioner.

(7) The Commissioner is to have regard to any representations made by virtue of sub-paragraph (6)(d).

(8) The Commissioner may consent to a transfer subject to such–

(a) modification to any condition of the licence; and
(b) conditions apart from the conditions of the licence,
as the Commissioner considers it appropriate to make.

(9) As soon as practicable after deciding whether to consent to a transfer, the Commissioner is to intimate the Commissioner’s decision to–

(a) the transferor and the transferee; and
(b) Scottish Water.

(10) Where the Commissioner withholds consent to the transfer, the transferee may, within 14 days of the date on which the withholding of consent was intimated to the transferee under sub-paragraph (9)(a), appeal to the Court of Session against the withholding of consent.

(11) In an appeal under sub-paragraph (10), the Court may quash or confirm the Commissioner’s decision to withhold consent to the transfer; and the decision of the Court in the appeal is final.

(12) In this paragraph, "transfer" includes any form of assignation.

Powers of entry etc.

4 (1) For the purposes of monitoring and ensuring compliance with the terms and conditions of licences under section 8(1), the powers mentioned in sub-paragraph (2) are exercisable by the Commissioner and any person authorised by the Commissioner for the purpose of the exercise of those powers.

(2) The powers are–

(a) power to enter any premises–

(i) of any water services provider or sewerage services provider;
(ii) in respect of which such a provider has made arrangements for the supply of water or for the provision of sewerage or disposal of sewage;
(iii) of any other person,
for the purpose of exercising a power mentioned in heads (b) and (c);

(b) power to carry out such inspection of any document or article found on the premises as the Commissioner considers necessary; and
(c) for the purpose of inspecting any such document or article, power to take the document away from the premises.

(3) The power mentioned in head (a) of sub-paragraph (2) entitles the Commissioner (or a person authorised by the Commissioner) to demand, as of right, entry–

(a) to premises referred to in sub-head (i) of that head, at any reasonable time (and without notice); and
(b) to premises referred to in sub-head (ii) or (iii) of that head, at any reasonable time provided that the Commissioner (or the person) gives 24 hours’ notice of the exercise of the power to the occupier of the premises.

(4) The powers mentioned in sub-paragraph (2) must not be exercised in relation to premises referred to in sub-head (iii) of head (a) of that sub-paragraph unless the Commissioner is satisfied that the exercise of those powers in relation to the premises referred to in sub-heads (i) and (ii) of that head would be insufficient for the purposes referred to in sub-paragraph (1).

(5) The owner and occupier of any premises in respect of which a power mentioned in sub-paragraph (2) is being exercised, and any person on the premises when the power is being exercised, must–

(a) give the person exercising the power such assistance; and
(b) provide that person with such information,
as that person reasonably requires.

(6) Any person who–

(a) intentionally obstructs a person acting in the exercise of any power conferred by sub-paragraphs (1) and (2); or
(b) refuses or fails, without reasonable excuse, to comply with a requirement made under sub-paragraph (5),
is guilty of an offence.

(7) A person who is guilty of an offence under sub-paragraph (6) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.

Powers of entry etc.: further provision

5 (1) If a sheriff or justice of the peace is satisfied, by evidence on oath, that–

(a) there are reasonable grounds for the exercise in relation to any premises of a power mentioned in paragraph 4(2); and
(b) at least one of the conditions mentioned in sub-paragraph (2) is fulfilled in relation to the premises,
the sheriff or justice may grant a warrant authorising the Commissioner (and any person authorised by the Commissioner for the purpose) to exercise the power in relation to the premises in accordance with the terms of the warrant and, if need be, by force.

(2) The conditions are–

(a) that the exercise of the power in relation to the premises has been refused;
(b) that such a refusal may reasonably be expected;
(c) that the premises are unoccupied;
(d) that the occupier is temporarily absent from the premises;
(e) that the case is one of urgency;
(f) that an attempt to gain entry to the premises without the authority of a warrant would defeat the object of the proposed entry.

(3) A sheriff or justice must not issue a warrant under this paragraph by virtue of being satisfied that a condition mentioned in head (a) or (b) of sub-paragraph (2) is fulfilled unless the sheriff or justice is also satisfied–

(a) that notice of the intention to apply for the warrant has been given to the occupier of the premises; or
(b) that the giving of such notice would defeat the object of the proposed entry.

(4) A warrant granted under this paragraph continues in force until the purposes for which the warrant is issued have been fulfilled.

(5) A person entitled to enter premises by virtue of the power mentioned in paragraph 4(2)(a)–

(a) may take on to the premises such other persons and such equipment as may be necessary; but this is, where that power is exercisable under a warrant, subject to the terms of the warrant; and
(b) must, if required to do so, produce written evidence of that entitlement.

(6) A person who enters premises in the exercise of the power mentioned in paragraph 4(2)(a) must leave the premises as effectually secured against trespassers as the person found them.

(7) Where a person exercises the power mentioned in paragraph 4(2)(a), the Commissioner is to make full compensation to any person who has sustained loss or damage by reason of–

(a) the exercise that power; or
(b) the carrying out of, or failure to carry out, the duty imposed by paragraph (6),
except in so far as the loss or damage is attributable to the fault of the person who sustained it.

(8) Any person who makes use of or discloses any trade secret of which the person has gained knowledge as a result of the exercise of any power conferred by paragraph 4(1) and (2) is guilty of an offence.

(9) A person who is guilty of an offence under sub-paragraph (8) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.

Enforcement notices

6 (1) If it appears to the Commissioner (whether or not following the exercise of powers under paragraph 4)–

(a) that–

(i) a water services provider or a sewerage services provider has contravened a term or condition of the licence held by the provider and the contravention is likely to recur; or
(ii) such a provider is contravening a term or condition of the licence held by the provider and the contravention is likely to continue or to recur or both; and

(b) that the provider is not taking appropriate steps for the purpose of rectifying the contravention or (as the case may be) preventing its recurrence, the Commissioner may serve on the provider a notice (in this paragraph and paragraphs 7, 8 and 10 referred to as an "enforcement notice") in respect of the contravention.

(2) An enforcement notice must specify–

(a) the contravention to which it relates;
(b) the Commissioner’s reasons for believing (as the case may be) that the contravention–

(i) has occurred and is likely to recur; or
(ii) is occurring and is likely to continue or to recur or both;

(c) the date by which the provider is required to rectify the contravention or (as the case may be) take steps to prevent its recurrence;
(d) any particular steps which the Commissioner requires the licence holder to take for that purpose; and
(e) the date on which the notice is to take effect.

(3) An enforcement notice may specify different dates by which different steps specified under sub-paragraph (2)(d) must be completed.

(4) The date referred to in sub-paragraph (2)(e) must be no earlier than the day following the last day on which an appeal may be made under sub-paragraph (9).

(5) In considering whether to serve an enforcement notice, the Commissioner must consult–

(a) Scottish Water; and
(b) such other persons as the Commissioner considers appropriate.

(6) Before serving an enforcement notice on a provider under sub-paragraph (1), the Commissioner is to–

(a) serve a copy of the proposed notice on the provider; and
(b) specify a period (which must expire not less than 7 days and no more than 28 days from the date of service of the notice) within which the provider may make representations to the Commissioner about the proposed notice.

(7) The Commissioner–

(a) is to have regard to any representations made by virtue of sub-paragraph (6)(b); and
(b) may adjust the notice in light of the representations.

(8) The Commissioner must send a copy of an enforcement notice to–

(a) the Scottish Ministers; and
(b) Scottish Water.

(9) A provider on whom an enforcement notice has been served may, by summary application made within 14 days of the date of service of the notice, appeal to the sheriff against the notice; and the enforcement notice is of no effect until the appeal is withdrawn or finally determined.

(10) In an appeal under sub-paragraph (9), the sheriff may make such order as the sheriff thinks fit; and the decision of the sheriff in the appeal is final.

(11) The Commissioner may–

(a) withdraw an enforcement notice; or
(b) waive or relax any requirement of an enforcement notice, including substituting a later date for a date specified under sub-paragraph (2)(c) or (3),

and may do so whether or not the notice has taken effect.

(12) The withdrawal of an enforcement notice does not affect the Commissioner’s power to issue a further such notice.

Enforcement notices: offences

7 (1) Any water services provider or sewerage services provider, on whom an enforcement notice has been served, who–

(a) fails to rectify, or (as the case may be) fails to take steps to prevent the recurrence of, a contravention specified in the notice–

(i) by the date specified in relation to the contravention under sub-paragraph (2)(c) of paragraph 6; or
(ii) where a later date has been substituted for that date under sub-paragraph (11)(b) of that paragraph, by that later date; or

(b) fails to complete a step specified under sub-paragraph (2)(d) of paragraph 6–

(i) by the date specified in relation to that step under sub-paragraph (3) of that paragraph; or
(ii) where a later date has been substituted for that date under sub-paragraph (11)(b) of that paragraph, by that later date,
is guilty of an offence.

(2) An offence under sub-paragraph (1) may be charged by reference to any day or longer period of time; and a provider may be convicted of a second or subsequent offence under that sub-paragraph by reference to any period of time following conviction for such an offence.

(3) A person who is guilty of an offence under sub-paragraph (1) is liable–

(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on indictment, to a fine.

Revocation of licences

8 (1) A water services licence or sewerage services licence may be revoked in accordance with this paragraph.

(2) If it appears to the Commissioner that a water services provider or sewerage services provider, on whom an enforcement notice has been served, has–

(a) failed to rectify, or (as the case may be) failed to take steps to prevent the recurrence of, a contravention specified in the notice–

(i) by the date specified in relation to the contravention under sub-paragraph (2)(c) of paragraph 6; or
(ii) where a later date has been substituted for that date under sub-paragraph (11)(b) of that paragraph, by that later date; or

(b) failed to complete a step specified under sub-paragraph (2)(d) of paragraph 6–

(i) by the date specified in relation to that step under sub-paragraph (3) of that paragraph; or
(ii) where a later date has been substituted for that date under sub-paragraph (11)(b) of that paragraph, by that later date,
the Commissioner may revoke the licence held by the provider by serving on the provider a notice of revocation.

(3) If–

(a) it appears to the Commissioner that a water services provider or a sewerage services provider has contravened a term or condition of the licence held by the provider; and
(b) the Commissioner considers that the provider would fail to comply with the terms of an enforcement notice pertaining to that contravention,
the Commissioner may revoke the licence by serving on the provider a notice of revocation.

(4) If, having special regard to the factors mentioned in paragraphs (a) and (b) of subsection (2) of section 7 and to any other matters specified under that subsection, the Commissioner considers that a water services provider or sewerage services provider no longer has the ability to perform adequately the activities authorised by the licence held by the provider, the Commissioner may (whether or not the provider has contravened a term or condition of the licence held by the provider) revoke the licence by serving on the provider a notice of revocation.

(5) The Commissioner may, following a request made to the Commissioner by a water services provider or a sewerage services provider for the licence held by the provider to be revoked, revoke the licence by serving on the provider a notice of revocation.

(6) The Commissioner must not revoke a licence under this paragraph unless satisfied that revocation is reasonable having regard to–

(a) the terms and conditions of the licence;
(b) the provider’s responsibilities to the provider’s customers; and
(c) any other matters the Commissioner considers to be relevant.

(7) A notice of revocation must specify–

(a) the reasons why it is served; and
(b) the date (which must not be sooner than the day after the last day on which an appeal against the notice may be made under sub-paragraph (8)) from which the revocation is to have effect.

(8) A provider on whom a notice of revocation has been served under sub-paragraph (2), (3) or (4) may, by summary application made within 14 days of the date of the notice, appeal to the sheriff against the notice; and the revocation is of no effect until the appeal is withdrawn or finally determined.

(9) In an appeal under sub-paragraph (8), the sheriff may make such order as the sheriff thinks fit; and the decision of the sheriff in the appeal is final.

(10) As soon as practicable after a revocation under this paragraph has effect, the Commissioner must–

(a) send a copy of the notice of revocation to–

(i) Scottish Water; and
(ii) the Scottish Ministers; and

(b) publish the notice.

Penalties for contravention of licence

9 (1) Where it appears to the Commissioner that a water services provider or a sewerage services provider has contravened a term or condition of the provider’s licence, the Commissioner may impose on the provider a financial penalty of such amount as the Commissioner considers reasonable in the circumstances of the case.

(2) The Commissioner–

(a) is to prepare a statement of policy with respect to the imposition of penalties under sub-paragraph (1) and the determination of their amount;
(b) is to keep the statement under review and may revise the statement; and
(c) in preparing the statement (and any revised statement), is to consult such persons as the Commissioner considers appropriate; and
(d) is to publish the statement (and any revised statement) in such manner as the Commissioner considers appropriate.

(3) Before imposing a penalty under sub-paragraph (1), the Commissioner is to serve on the provider a notice of the Commissioner’s intention to impose the penalty; and the notice must specify the date by which the provider may make representations to the Commissioner with respect to the penalty.

(4) In imposing a penalty under sub-paragraph (1), the Commissioner is to have regard to–

(a) the statement of policy under sub-paragraph (2) as published at the time of the contravention to which the penalty relates; and
(b) any representations made by virtue of sub-paragraph (3).

(5) A provider on whom a penalty is imposed under sub-paragraph (1) may, by summary application made within 14 days of the date on which the penalty was imposed, appeal to the sheriff against the imposition of the penalty or the amount of the penalty; and the penalty is not recoverable until the appeal is withdrawn or finally determined.

(6) In an appeal under sub-paragraph (5), the sheriff may make such order as the sheriff thinks fit; and the decision of the sheriff in the appeal is final.

(7) Any penalty imposed under sub-paragraph (1) is recoverable, from the person on whom it was imposed, by the Commissioner–

(a) by civil diligence; and
(b) whether or not that person continues to hold the licence in relation to which the penalty was imposed.

(8) Any sums received by the Commissioner by virtue this paragraph must be paid into the Scottish Consolidated Fund.

Register of licences

10 (1) The Commissioner must keep a register of water services licences and sewerage services licences in such manner as the Scottish Ministers may by order prescribe.

(2) The register must–

(a) record the particulars of the holder of each licence;
(b) record the terms and conditions of each licence;
(c) record, in relation to any enforcement notice–

(i) the particulars of the provider on whom the notice was served;
(ii) the date of service of the notice;
(iii) the matters specified under sub-paragraph (2) of paragraph 6;
(iv) any date specified under sub-paragraph (3) of that paragraph; and
(v) anything done under sub-paragraph (11) of that paragraph;

(d) record, in relation to any notice of revocation served under paragraph 8–

(i) the particulars of the provider on whom the notice was served;
(ii) the date of service of the notice;
(iii) the reasons why it was served; and
(iv) the date specified under sub-paragraph (7)(b) of that paragraph;

(e) record, in relation to any penalty imposed under paragraph 9–

(i) the particulars of the provider on whom it was imposed;
(ii) the amount; and
(iii) the date on which it was imposed;

(f) record the outcome of any appeal provided for in this schedule; and
(g) contain such other information as the Scottish Ministers may by order prescribe.

(3) The register must be available for inspection by any person at any reasonable time.

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