Eamon Gilmore (Dún Laoghaire, Labour)

As I listened to the Minister's reverie about the 19th century, I too was struck by how times have changed. The Minister was struck by the contrast between the rudimentary nature of the Victorian world and the modernity of present day society. I was struck more by the contrast between how much more was achieved in the 19th century in the provision of infrastructure in this country by a foreign government during the poorest of circumstances and how little has been achieved in the past seven years by the Fianna Fáil-Progressive Democrats Government during the wealthiest of times this island has ever experienced. Contrast the Victorians' achievement in the building of national schools, a road and rail network and the provision of water and sewerage schemes for towns with what this Government has done, with all the technology and moneys available to it. There is no decent public transport system. Instead, the rail system between our cities is less efficient and frequent than it was in the Victorian era. Why are there places where water quality is still poor and supply inadequate? Why must the people of Corke Abbey and Woodbrook Glen in the Dún Laoghaire constituency endure the stench of sewage every summer because of the inadequacy of the treatment plant in that area? Every once in a while, a boring-looking Bill appears on the Order Paper, the contents of which appear to be non-contentious and the debate on which promises to be pretty pedestrian. The press disappear from the Press Gallery, Deputies use the opportunity to raise issues of mainly local concern and eventually the Minister and the party spokespersons are despatched into committee to consider technical amendments that never fire the political imagination.

On the face of it, this is one such Bill. It consolidates and modernises all the arcane 19th century legislation on water and sewage; transposes to national law a battery of EU directives and regulations; introduces a licensing system for water services and puts the national rural water monitoring committee on a statutory basis. Until the Bill is examined more closely, this seems to be all good, solid law making, but boring politics. When one peels back the misleading rhetoric of the Minister's speech and reads the text of the Bill that bears little relationship to what the Minister said about it in the course of his speech, one finds a Bill that may have significant implications for every household but the implications of which may not be felt for a number of years to come. At that stage, press and politicians alike will wonder where the extraordinary powers came from and how this happened, only to find that it all emanated from a dull-looking Bill called the Water Services Bill 2003.

This seemingly boring, technical Bill will permit water services in Ireland to be privatised without any further authority from Dáil Éireann and will allow water service providers to charge for water. Although the Minister protests that water charges are not being introduced, this Bill provides a way around the 1997 Act that abolished domestic water charges. The Bill introduces metering of water and of sewage. It authorises water service providers to tell a householder how much water he or she may use and if necessary to ration the water. It allows future EU water legislation to be implemented without further primary legislation being brought before the Oireachtas. The Bill empowers county managers to make and amend strategic water service plans without any public consultation and without having to obtain the approval of the elected councillors. It permits water service providers to dig up public roads without having to obtain a road opening licence. They will simply need the consent of the roads authority, I presume, with just a telephone call. The Bill makes individual householders legally liable for the quality of water coming through their domestic taps, while at the same time it indemnifies the Minister, the city and county councils and the water service providers for any fault on their part.

Perhaps the most remarkable thing about this Bill is what is omitted from it. One would expect that the first water services Bill of the 21st century, in a State that, according to economists, intends to be the most prosperous in Europe, would have something to say about the citizen's right to water. Water is essential for life. This Bill acknowledges and legislates for European directives that emphasise water quality and hygiene, but nowhere does it state that the people have a right, subject to compliance with planning law, to a connection to a public water supply or to access clean water. This legislation should define access to water as a right and the consequential obligations should be placed on the relevant public authorities.

If anything, this Bill faces in the opposite direction. Sections 6 to 14, hammer out what a person may not do in respect of the provision of a water supply. These sections set down heavy penalties for non-compliance. I appreciate the intention of these sections is to confine the provision of water services to the public water authorities or to authorised or licensed water service providers and that such a regulated framework is in the public interest. However, it is at least very odd drafting to begin a Bill with what is being banned, before setting out what is being provided. In the absence of a clear statement of a statutory right to water, the effect is to turn water into a commodity and to give water service providers a role that is at least potentially commercial.

The provisions that make the Minister, the water authorities and other water services providers, immune from legal action reinforces the omission of a statutory right to water. Section 29 states that nobody can take a legal action against the Minister, a water services authority or other prescribed person, arising from any failure to provide water or failure to fulfil their functions under this Bill. Similar immunity is being granted to their officers and employees. A water services authority can cut off a water supply to a household or to a business and under section 56(12):

Liability shall not accrue to a water services authority arising from any consequence of the restriction or cutting off of a supply of water in accordance with subsection (11).

If this Bill is passed, the individual person or householder will have no statutory right to water. The supply of water will be legally confined to the public water authorities and to those licensed or authorised under this Bill and those bodies cannot be made accountable through the courts for any failure or omission. They can deny us water, they can even poison us with the water they supply and we cannot seek remedy in a court of law.

We will not be able to do much about it through the democratic system either. The provision of water at local level will be governed by the water services strategic plan. This will be analogous to the county development plan or the waste management plan. Section 36(3) states:

The making, replacement or revision of a water services strategic plan is an executive function.

In other words, the water services strategic plan will be decided by the city or county manager, and under section 37, it will be approved or amended by the Minister. There is no provision for any public consultation about the plan. The elected council will have no function at all in respect of the plan. Lest there be any doubt, section 36(5)(b) prohibits the council from exercising its powers under the Local Government Act to give any direction to the manager about the plan.

This Fianna Fáil-Progressive Democrats Government has habitually transferred local powers to city and county managers. The unique feature of this Bill is that there is not even a pretence of public involvement or democratic accountability. Strategic planning for the provision of the most basic necessity of life, water, will be done in secret by appointed officials who will not have to tell the public what they are doing; will not have to subject their plans to a vote of the people's representatives and will be immune from action in the courts for the consequences of their actions.

According to section 38, it is only when it has been made by the manager and approved by the Minister that the plan must be published. Under section 38(3), the only right being granted to the public is to get a copy of the plan after it has been made and then only on payment of a fee by the member of the public. Even then, the person can be made wait for 21 days before the council forwards it to him or her.

Apart from the lack of democracy and even courtesy to the public that this process demonstrates, it is wide open to abuse. The strategic planning of water mains and sewerage services and the lands through which they pass or service, are critical factors in the development of land and in the consequential speculation and value of land. I ask the House to imagine what a George Redmond might do if he had the power given in this Bill to make strategic water services plans and decide where and when water and sewerage pipes were to pass through whose lands and where.

The powers of the Minister and manager are not confined to making strategic plans. In this Bill they are also being given the effective power to privatise water services without further reference to this House. The Minister protests it is not the intention of the Bill to privatise water services and that it is mischievous to say otherwise. All I can do is rely on the text of the Bill. Section 27 states:

(1) Subject to subsection (2), where the Minister is satisfied that—

(a) any function conferred on a water services authority by this Act could be effectively performed in lieu or in addition by the Minister, or other prescribed person,

(b) any function conferred on the Minister could be performed in lieu or in addition by a water services authority or other prescribed person,

the Minister may prescribe that the Minister, a water services authority or other person prescribed may perform the function from a prescribed date.

It is quite clear from that that the Minister has the power to prescribe any other person to do anything the Minister or a water services authority has the power to do under this legislation. That enables the Minister to prescribe that a particular water service be delivered by, for example, a private company.

Section 28 again emphasises that particular dimension. It states:

(1) The Minister may, following consultation with any Minister of the Government who in the opinion of the Minister is concerned, by regulations—

(a) assign to a water services authority or such other person as may be prescribed, additional functions in relation to water services.

Again the power is being given to the Minister to assign to persons, other than himself or a water services authority, the additional powers envisaged in this legislation.

Sections 6, 7, 24 and 25 all refer to the Minister, water services authority and what is called "any other person prescribed" as having duties and responsibilities under this Bill. The question that must be asked is, what is meant by this "any other person" referred to in this legislation? The term is not defined in the legislation. I am sure the Minister would have us believe that what is intended is the group water schemes, that is, that this is what "any other person" refers to. However, section 16, which deals with the allocation of grants, draws a distinction between the "any other person" frequently referred to in the legislation and the providers of water under group water schemes.

The right to privatise water services under this legislation will not be confined to the Minister. Under section 31, a water services authority or a local authority can privatise its own water supply, a reservoir, a water treatment plant or an individual sewage treatment plant. I draw the Minister's attention to section 31(5) which states: "Without prejudice to the State Authorities (Public Private Partnership Arrangements) Act 2002, for the purposes of fulfilling all or any of its functions under subsection (2), a water services authority may make arrangements with another person, including entering into an agreement or arrangement with another person in relation to the provision of water services by another person or jointly with it in part or all of its functional area." As I read it, that is not, as the Minister purported to tell this House, simply the public private partnership arrangement. This subsection makes it clear that, while it may be public private partnership, it may be much wider than that as well.

It is nothing new. We already know, for example, that many local authorities have privatised their waste collection services. The process of privatisation in the area of water services has already begun. International water companies have already become involved in the upgrading of group water schemes. I understand there have been cases where group water schemes have been grouped together with some smaller public schemes. I have no objection to that. The design-build-operation formula is already being used effectively to privatise parts of the water services provision. It is meaningless for the Minister to try to assure the House that there is no issue of privatisation of the water services supply in this country when the process has already started and when this Bill clearly sets down a blueprint for it.

Section 34 clearly anticipates that privatisation will occur. It provides for the Minister to issue guidelines and codes of practice to water service authorities and to what is called "the provision of water services by any other person". If water is to become a commodity and privatisation of water supply is to become a reality, then the issue, inevitably, arises about charging for water. Again, the Minister protests that water charges are not being introduced and that the 1997 Act, which abolished them, is not being repealed. That is true up to a point but this Bill clearly anticipates and provides for a charging regime. It is not surprising that it should do so.

The Bill deals with the implementation of, or the giving effect to, European Union directives. We know the European Union water framework Ddrective requires cost recovering in regard to water supplies and that certain exemptions were made in making that framework for this country in that provided the Government could show there was cost recovery by some other means, it would not necessarily insist on the re-introduction of domestic water charges. We also know that is subject to review in approximately 2008 or 2010.

Section 5 gives effect to the European Union directives. What is interesting are the contents of section 30(3) which states:

When carrying out his or her functions under the Act, the Minister shall have regard to and take full account of:

(a) the principle of recovery of the costs of water services as provided for in Article 9 of the EU Water Framework Directive.

It is interesting that that provision of the water framework directive should be singled out for special mention in the legislation. After all, if the water famework directive is being given effect anyway in the Bill, why list this provision and highlight it as a matter the Minister must take into account in carrying out his or her function? It is to underline the fact that this Bill provides for a charging regime.

An interesting and significant feature of this Bill — it is an unusual feature and one which I do not think has precedent in any other legislation I have seen — is section 28(2) which, as I read it, effectively means that this Bill is putting into Irish law future European Union directives in regard to water services before they are even made. Section 28(2) states:

Without prejudice to the generality of subsection (1), regulations under this section may assign to a water services authority or such other person as may be prescribed, any function. . . in the opinion of the Minister, arises from, or is necessary for or in connection with the implementation of-

(a) any provision of the treaties governing the European Communities,

(b) any Act adopted by the institutions of those Communities, or

(c) any international convention or agreement to which the State is, or becomes, a party.

It is the first time I have come across primary legislation giving effect to international obligations, or to legislation drawn up by the European Union, before they have been made. That is happening in anticipation of a change in the water framework directive which may make it mandatory for this country to re-introduce domestic water charges.

Section 30(4)(d) states the Minister may specify standards, issue guidelines and codes of practice and give directions on matters relating to the provision of water services, including pricing mechanisms. Section 36(8) requires a water services strategic plan to include a provision dealing with income and expenditure. Where is the income to come from in the water services strategic plans of local authorities if there is not some form of charging? Section 52 gives to a council, water authority or any other person acting jointly with it or on its behalf, the power to recover sums due to it in respect of the provision of water services. Why would councils or other persons providing water services need to have the power to recover sums due to it if there were not to be some kind of charging regime?

Part 5 deals with metering. Section 72, which specifically permits the provision of water meters, sets out that subject to any direction of the Minister under this Act, a water service authority may supply water by measure and meter for it and so on. Section 72(1)(b) states that a water service authority may, subject to complying with the provisions of other enactments in relation to charging for water services, charge a rent or otherwise recover from a user the costs incurred by it in respect of every meter or other instrument provided for measuring the water supply to or the waste water discharged by that user. That is the way the Minister has found around the 1997 Act. He is leaving the 1997 Act in place. He said he is not re-introducing domestic water charges but he is obliging the householder to have a meter and he can charge the householder a rent for the meter.

Section 72(5) outlines regulations governing the operation of meters. Section 72(5)(h) is interesting in that it refers to the Minister's power to make regulations relating to the rental of meters and related charges. Meters will also be used for sewage purposes which will give a whole new meaning in the domestic household to the concept of spending a penny. The implications of this Bill for householders is very clear. There will be a charge for water and sewage. Those charges may yet have to be paid to private companies if the provision of those services is privatised as this Bill enables the Minister and the water service authorities to do.

Section 54 outlines general duties on owners of premises. From a water conservation point of view I can understand why they are being introduced. It allows the water services authority to give a direction to a householder regarding how much water he or she is using and to ration water. Householders would be well advised to become acquainted with this provision because it puts a legal obligation on them regarding the quality of water in the home.

As Deputy Allen stated, the Bill is most comprehensive. The Minister outlined how it provides a new regulatory framework for the delivery of water services. It places a serious obligation on the Minister and the Department. The new licensing regime and administrative responsibilities will also place new obligations on local authorities. A significant investment programme of €4.4 billion has been allocated for the introduction of the changes. However, I question whether the Minister and the Department will be in a position to implement the legislation. The Government has proposed to decentralise the Department to Enniscorthy, New Ross, Waterford and Wexford.

See this speech in context