A Response to RISE’s Water Report

waterMuch has been said in response to the recent announcement that Anglian Water has been awarded the retail contract for the supply of water to one hundred Scottish public sector organisations. Perhaps the most organised and in-depth response has been a report published by RISE wherein they allege this equals a new form of water privatisation, that if this is partly as a result of the Water Services etc. (Scotland) Act 2005 then the SNP should repeal the Act; and furthermore that EU laws ‘(are) not an excuse for this privatisation’. Let’s look at that.

RISE’s report states that EU rules regarding procurement decisions “makes it absolutely clear that protecting the environment and promoting social considerations is part of the procurement decision, not simply cost effectiveness”. However the EU quote they themselves provide makes it clear that this is only “as long as they are relevant to the product, service or work they want to procure”. Indeed anyone familiar with procurement legislation will know that such considerations can only be taken into account in the procurement process insofar as they directly relate to the service itself. As Scottish Water is still the water provider and Anglian are only providing retail services, the environmental issues RISE mentions with regards to Anglian cannot be taken into account as these have solely been in relation to their own water provision services. In fact Anglian likely scored well with regards to environmental considerations as a result of the green measures proposed in their bid.

With regards to ‘promoting social considerations’ none of the factors RISE mentions are actually relevant as none of them relate to convictions. Again to understand procurement legislation is to know that pay disputes, pay packages, tax avoidance, debt practices and suchlike can only be taken into account at all if there have been convictions as a result of illegal practices. Otherwise they can have no bearing at all on the procurement process. In fact it’s likely Anglian’s bid was strengthened in relation to wages as they have given a living wage guarantee.

Therefore once we take into account the correct and actual application of these terms and how they relate to the points system we can easily see that RISE have been completely wrong in their assumptions as well as how unlikely it is that Anglian would have been disadvantaged on either environmental or social grounds. Indeed it seems the difference very likely does come down to the fact that Anglian outbid Business Stream and that their green measures could potentially save public bodies up to a further £5 million per year.

RISE would have us believe, however, that there are other grounds on which Anglian’s bid could legally be rejected in favour of a publicly owned company, but this is where their report gets very confused. For example they speak of ‘plenty of legal wriggle room’ in relation to EU rules, and to explain this the report highlights the notion of ‘maximum flexibility’ from a quoted section of EU Directive 2004/17/EC. However this section simply relates to establishing “a framework for sound commercial practice”, highlighting principles for the purposes of fairness in light of the “opening up to competition of public procurement contracts”. There is nothing implicit or explicit in this section that would impact on the Anglian bid in any negative sense, yet RISE seem to think that ‘flexibility’ automatically means that somehow preferences benefitting publicly owned companies over private can become an aspect of the procurement process.

I would suggest they read a bit further on in said Directive, where it states the following: “To ensure a real opening up of the market and a fair balance in the application of procurement rules in the water, energy, transport and postal services sectors it is necessary for the entities covered to be identified on a basis other than their legal status. It should be ensured, therefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudiced”. In other words governments cannot in any way be prejudiced against private sector bids for water services open to competition as this would be unfair and contravene the very Directive RISE quotes from. Indeed it could not be clearer that it would be utterly illegal for the Scottish government to have any preference of public over private embedded within their procurement procedures.

Then we come to the Water Services etc. (Scotland) Act 2005.

The RISE report begins its analysis of this Act by conveying a misunderstanding of the criteria on licence provision when they say “the Scottish government may under s7(2) of the Act specify whatever criteria it deems appropriate in the awarding of licenses to water suppliers by making a ministerial order, without recourse to Parliament”. So RISE are basically saying here that the Scottish government can still make any demands it wishes with regards to criteria used in awarding licenses. Here’s what section 7 actually says: “(1)The Commission 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 to perform those activities, the Commission 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” (my highlighting). In other words the government can only add further criteria insofar as it directly relates to the ability of the provider to perform what they will be contracted for. Thus not only is it clear this section doesn’t in any way say the Scottish government can simply apply any criteria it wants (in fact it shows the reality is quite to the contrary); but the section itself actually relates to licenses provided by the Water Commission to companies providing retail water services to Scottish businesses, not the procurement process for awarding the retail water service contract for public sector organisations.

As for RISE’s assertion that the SNP should have repealed the Water Services Act, RISE again disappoint as they make no mention of the fact that the Act itself was in response to the 1998 Competition Act (UK) and that the opening up to competition of the retail aspects of non-domestic water provision was viewed as the best option available when it came to dealing with new constraints and threats presented by the Competition Act. Indeed during the first debate on the Water Services etc (Scotland) Bill Green MSP Mark Ruskell stated “The sale of water requires a licensed billing mechanism…that is the element of supply that I talked about and which represents an area into which some privatisation is being introduced. I am not condemning the Executive for that; I do not believe that it has any alternative, which is why the Green party is supporting the bill”. It’s why the SNP supported it too.

Indeed it’s clear that all Holyrood parties interpreted the Competition Act as opening the door to unregulated competition in relation to water services, and most agreed that without regulation this could not only adversely affect domestic water customers, but could also lead to water provision privatisation ‘through the back door’. Thus the then Labour/Lib Dem Scottish Executive brought forward water services legislation in order to protect both the Scottish public and Scottish Water. It was an effort to stem privatisation, not introduce it.

Green MSP Mark Ruskell summed the issues up nicely at the time “We must remain opposed to privatisation in principle. However, we must realise that we live in an age of globalisation and that there has been an erosion of public control of public services over the decades through the actions of the WTO and through the general agreement on trade in services…those actions have been supported over time by successive Tory and Labour Governments, which puts us in a difficult place in Scotland in keeping our public services in public control, especially given the provisions of the Competition Act 1998. That said, if the Executive had gone for a much harder line by putting in place a regulatory regime that would have pushed away any corporate involvement in the delivery of our water services in Scotland, there would have been an implicit danger, as I think that there would have been a legal challenge under that act to the legality of that regulatory regime. In itself, that would have put the future of our water services into the hands of multinational corporations, which would act through the courts to decide the future of our public services”. Perhaps also highlighting here the dangers of narrow idealism.

SNP MSP Richard Lochhead added “We welcome the fact that the bill is about protecting the Scottish industry. It is important that we support the bill so that we can have a statutory framework that will allow us to see off competition. We welcome…the fact that competition will not be introduced to the domestic sector”.

The Conservatives, of course, didn’t support the Bill precisely because it was an effort to minimise competition, and the SSP opposed the bill because they felt that the Scottish Executive should have asked the UK government for an exemption; their cited objections being that opening up some water services to privatisation would in their view inevitably lead to privatisation of water provision itself. This wasn’t viewed as credible by the other parties, and wasn’t consistent with the advice the Executive had been given on the matter. Indeed Labour MSP Lewis MacDonald commented that evidence given in committee together with the submission from the Office of Fair Trading had confirmed the Executive’s view on what was needed to meet the requirements of the Competition Act, and that they did indeed have to meet them; but also that Scottish Water would be protected as our national water provider (and it has been).

And still today it seems that no sitting MSP disputes that the Water Services Act was necessary and this includes critics of the Anglian procurement award. Green Co-Convener Patrick Harvie recently questioned whether Anglian was the kind of company we wanted to be ‘doing business with’, however he himself commented that the only kinds of options open to the Scottish Government would have been in relation to practical implementation considerations such as preferable contract size: “rather than offering one massive contract (for all public sector organisations), it could have been broken up into smaller lots”. However he fails to say how this would help when it would cost more money, wouldn’t prevent companies like Anglian being awarded contracts, and indeed it may well be the same company winning the different contracts anyway. He added that Green MSP Alison Johnstone had put forward a motion to prevent Business Stream losing the public sector contract, although hopefully they both realise it would be completely illegal to fix the procurement process (which incidentally has nothing in common with the legal situation around minimum alcohol pricing). Indeed the weaknesses of these responses simply help to make the point that there was and is nothing more the Scottish government can do to improve on the 2005 Act.

Thus the Water Services etc. (Scotland) Act 2005, created for the purposes of making sure that only the retail aspects of non-domestic water supply were opened up to competition protecting both the Scottish public and Scottish Water, was not repealed and came into effect in 2008; at which time Scottish non-domestic water supply became privatised.

There has been much confusion as to what this privatisation actually covers and how it works so it’s important to be very clear on this point: As has been touched on above Scottish Water has not been privatised, is protected from privatisation, and is responsible for all water provision in Scotland except for those who provide their own (3.5% of the population, mostly in rural areas). It is just non-domestic retail water supply services that have been privatised since 2008. No further water services have been opened up to competition since then. Thus the assertion by RISE that the Anglian award “breaks with previous SNP commitments to keep Scotland’s water public” has no basis in reality.

Business Stream, whilst owned by Scottish Water, is a for-profit company that is run completely independently and competes in the retail water market. Indeed they have been making inroads in the English market and were recently announced as the supplier for House of Frasers’ English stores from next year. Another important fact completely ignored by RISE and many others is that besides the contract for public sector provision, which is just one retail contract, there are 130,000 Scottish businesses being supplied with water through companies licensed by the Water Commission, who currently list 19 such licensed suppliers on their website, including Anglian Water, who have been providing retail water supply services to non-domestic Scottish customers since April 2008.
Thus the whole Scottish non-domestic retail water service sector is composed of for-profit companies, all of whom compete for business, and in Scotland have done so for years. Indeed there is nothing new to see here except the branching out of Business Stream to new markets.

Taking stock of all the above it’s very clear that the claims RISE have made in their report are either mistaken on their own terms or fail to stand up to scrutiny. They even failed to interpret their own EU advice correctly.

It’s clear that it wasn’t EU Laws that gave rise to this years-old privatisation of non-domestic water services, but rather it was increasing market liberalisation and subsequent UK laws that triggered the response of (most) Scottish MSP’s (including the Greens and the SNP) to take on board the advice parliament had been given and do what they could to meet the requirements of these laws, whilst minimising the privatisation introduced as a result of them.

This is why the legal advice cited by RISE is irrelevant; their expert on EU Constitutional Law, Marco Goldoni, states “The case for a legal obligation to compete retail aspects of water distribution rests on shaky grounds and it is certainly not mandated by EU institutions”. Well it’s clear that the EU isn’t forcing competition, but once services have been opened to competition their procurement procedures are subject to EU competition laws (much of which has been discussed here) and again procurement legislation makes this clear. Thus RISE’s assertion that Marco Goldoni’s advice demonstrates that “EU law is no constraint on the Government’s decision, even if Anglian were the lowest bidder” is not only not what he says in his quote, but more to the point is completely untrue.

As we have seen above, under EU laws the SNP cannot give preference to publicly owned companies and all considerations are clearly and tightly defined; indeed there is no room for creative interpretation. Thus companies like Anglian have been operating in Scotland for years and whilst many may not like it, there really doesn’t seem to be anything that can be done to change it.

Some people reflecting on all this may wonder whether bringing public water back into a municipal system could be a way to circumvent some laws. I can’t see how that might be the case, but even if it were a possibility I don’t imagine this ever happening or indeed being worthwhile.

Since water provision moved from regional authorities to a central water authority via the creation of Scottish Water in 2002, there have been enormous improvements. The quality of our drinking water has markedly improved, the Water Commission reports that Scottish Water has made efficiency savings equivalent to £3 million per week, and Scottish Water is widely understood as having greatly improved energy efficiency, innovation and investment and is generally cited as a huge success. Also I’m not sure of what the costs would be to regional authorities of bringing back privatised water services into public hands, but I imagine they would be substantial.

With all this considered it’s doubtful anything can or will change in the near future without some other external change first taking place. But even if you see a modicum of possibility within this situation, I say to anyone who says the Scottish government has ‘privatised water’, or ‘didn’t have to give Anglian the contract’ or ‘could have made sure the contract was kept in public hands’ that in making these kinds of statements, you belittle us all.

Comments (58)

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  1. Malcolm Kerr says:

    I find it quite frustrating that all articles are authored by “Bella Caledonia Editor”. The articles are clearly written by numerous authors, and it would be interesting (and conventional) to know who they are. What’s the problem with the authors being credited for their work?

    1. Every author is credited. Above the article it says ‘by Kimberley Cadden 13TH OCTOBER 2015’. The automated email that subscribers receive is posted from ‘Bella Caledonia Editor’ – I’ll see if there’s a way I can change this. Sorry about the confusion.

      1. Mary Herdman says:

        Thanks, I had been wondering the same thing – all is now explained.

  2. Puzzled Puss says:

    Thank you for this excellent article, which clarifies an issue which, for me, at any rate, has been quite confusing, not to say murky.

  3. Saor Alba says:

    Thank you Kimberly for a timely, excellent, much needed, knowledgeable, well researched and well constructed response to ill-informed comments made by RISE and others. You have described the situation very clearly and there can be be no room for any lack of understanding now.

    In my humble opinion, the SNP have an excellent record in government and deserve much praise for their sensible, constructive and humane approach to government. They do not need irresponsible comments such as we have heard from RISE, who will not win many friends with this kind of divisive approach. I do hope that RISE will have the humility to admit their lack of accuracy in this matter, but I fear that they will not.

    Saor Alba.

  4. Alex Grant says:

    Excellent article. Pity no such analysis has appeared in MSM. A debate in Holyrood might be useful?
    One point I don’t think is covered is, as I understand it, that BusinessStream can’t compete on exactly same profit margins? Also They don’t have exactly the same access to the English market as Anglian do in Scotland and this will not change for I think two years. These limitations are due to the effective monopoly which BS had??

    1. Martin says:

      Alex, the market for the provision of retail services to all English non-household customers will be open to competition from April 2017, as required by the Water Act 2014. At the moment, only customers using more than 50 million litres a year can select their preferred retailer in England (that is why House of Fraser could choose Business Stream). From April 2017 Business Stream and all other Scottish and English retailers will be able to compete for all non-household customers both in Scotland and in England.

  5. Alan M Johnston says:

    Contained in this excellent article is a mention that Patrick Harvie suggested breaking up the contract into smaller bundles.When I was a senior contracts manager some years ago this sort of practice was illegal.I imagine the same still applies.

    1. Derick fae Yell says:

      Yes. Deliberate splitting of contracts would be anti-competitive and liable to challenge. Non starter

  6. Bugger Le Panda says:

    I have referenced this article on the Guardian in Iain McTwitter’s piece about SNP dgeradation (or n0t)

    http://www.theguardian.com/commentisfree/2015/oct/13/jeremy-corbyn-snp-radical-scotland-labour?CMP=share_btn_tw#comment-61316981

  7. Kevin Williamson says:

    Legal advice is pretty clear. If you support publicly owned services vote NO to remaining in the EU.

    KW

    1. muttley79 says:

      I afraid Kevin that will align you with the people who want to withdraw from the EU so they can water down worker rights even more, amongst other things. Why do you think Farage and the Tory right wing want to withdraw from the EU?

      1. Valerie says:

        Even if some people think we can come out of the EU, and continue to trade, then think again. You still have to abide and implement all the EU directives if you want to trade.

      2. Kevin Williamson says:

        Its a price worth paying. There is a halfway house though. Join Norway, Iceland and Switzerland in EFTA. Keep our own currency that way too.

        KW

        1. Valerie says:

          I’m not convinced that EFTA has any advantages for Scotland.

  8. tartanfever says:

    Thanks Kimberley,

    Freely admit I am one who got their ‘facts’ (speculation) pretty wrong. I appreciate this clear, explanatory article.

    I had suggested in previous discussions that maybe the SNP were taking a softly, softly approach with the EU after the episode with minimum alcohol pricing. If I suggested that the two were similar, I apologise. My intention was to ask whether there was a general ‘state of mind’.

    Is there any chance of an expert writing a piece on TTIP and how this could effect such contracts and provision from the likes of Scottish Water ? I’m also thinking about fracking and if TTIP is passed, will energy companies have any legal standing to take the Scottish Government to court over the current moratorium ?

    1. Mike Fenwick says:

      One of the best (for me at least) sources of information and critical analysis of TTIP is here:

      http://ttip2015.eu/home.html

      On that “Home” page go to the foot and the article on the supposed ending of ISDS and its replacement with an “International Court Settlement” – it’s not easy reading, but it clearly shows why there is such concern over what is being proposed.

      To come closer to your thoughts on fracking etc – from the “Home” page click on documents, and read:

      23 June 2015
      Letter to Sajid Javid MP, British Secretary of State for Business, Innovation and Skills (it pops up as a pdf).

      That letter dramatically expands on the full range of entities that will be potentially under attack, from food safety, to climate, to labour rights – the list is long.

  9. Stevie Anderson says:

    A wonderful explication of the full grandeur of SNP hand-wringing on this issue, as with so many others.

    Do a private water company operate and profit from a contract to supply water in Scotland? Yes.

    Does the SNP support the tendering processes by which these contracts and creeping privatisations happen? Yes

    Could the SNP seek to oppose these processes politically and legally? Yes

    Will they do so? See above paragraph after paragraph of handwringing in attempt to make an argument that a big boy did it and ran away. The SNP will not seek to change or challenge creeping privatisation. They will however blame everyone else for it while being “strong” for Scotland. Not my Scotland though. The Scotland of private privilege and profit.

    1. Me Bungo Pony says:

      Clearly you have misread the article Stevie. Either that or, as a certain Mr Hothersall likes to put it, you are being “wilfully dishonest”.

      1. Stevie Anderson says:

        Are we honestly to believe that whether the SNP are the Scottish Government or not, we simply have no options, opinions, political ambitions, campaigns, problems or anything like these things when we are faced with the might of….well most things really. It strikes me that we do have agency and should also have political ambition, not to mention a bit of integrity, when it comes to these issues. We can do far more to oppose creeping privatisation, and while I don’t doubt that this well researched and written piece is accurate in its technical assertions, is it so in its political assertions and conclusions, not least of which is that the dreadful few who dare to question on these matters “belittle us”. Really?

        Kimberly has written an excellent piece here in defence of one of the two SNP positions: that the SNP had no option. The other defence of course is that this wasn’t privatisation and anyway it’ll be fine, here’s Nicola with a baby. All is well.

        Actually all isn’t well. If we really don’t fancy fracking then let’s say and do so. If we really don’t fancy privatisation of services en let’s do that too. But most of all if we really want to make a better Scotland can we stop devolving all responsibility for keeping it the same or making it worse.

    2. anon says:

      “oppose the processes”. you are asking them to break the law by doing this…every person would face the repurcussions of the country being fined heavily.

      1. Stevie Anderson says:

        And are you then asking us to accept these laws as natural laws and not contingencies based on relationships between people? Yes defy the law, or campaign against the law, or speak against it, organise against it, politically agitate against it, discuss it at dip inferences and make policies against it, appear on to and speak against….

        But no, there is nothing to be done and perhaps that’s because there’s not a wish to do anything.

        1. Stevie Anderson says:

          Apologies for phone typos….inferences is meant to be conferences

        2. Moray Man says:

          Yes change the law if that is possible. How does the Scottish Government change the 1998 Competition Act (UK) ? However if the Scottish Government breaks the law the Unionist press and politicians will be cheering us on.

          RISE can say what they like. They don’t have the responsibility of power.

          1. Conor Cheyne says:

            You are right, we do not. Neither do the SNP in Westminster so should I suggest the SNP do not comment on issues relating to Westminster and the Tories? Of course not, that’s ridiculous and undemocratic

    3. Tony M says:

      Stevie

      Seriously ? You read an article like this and still cannot bring yourself to accept what it lays out as the boundaries of the Scottish Govt ability to act within a UK legislative framework that is constructed to promote neo-liberal ideology. The Scottish Govt previously and now was and is plainly opposed to the rampant privatisation and sell off but has got to act within the legal frameworks of the UK and EU. Your suggestion that this is some for of SNPbad are demeaning to your own intellect and the hard work put into the article.

    4. Martin says:

      “Do a private water company operate and profit from a contract to supply water in Scotland? Yes. ”

      No. All households, businesses, public sector and not-for-profit organisations in Scotland are supplied by the publicly-owned Scottish Water.

      From January 2016, Anglian Water will provide RETAIL services only (e.g. billing, metering, water efficiency advice) to public sector organisations because they offered the best value for money option and won the tender.

      If you are concerned about creeping privatisation, I think you should focus your attention somewhere else.

  10. Doug Daniel says:

    This is a great piece of work, Kimberley. This is going to be my go-to article from now on any time I see folk trying to make out that the awarding of the contract to Anglian Water was somehow proof that the SNP wants to privatise stuff. There’s been a lot of (mostly well-meaning?) nonsense spoken about this over the past couple of weeks, but this is good, sober, evidence-based analysis.

    1. Valerie says:

      Completely agree with Doug Daniel. A well written, clear and evidenced analysis of all the questions or accusations raised.

      Thank you to Kimberley and Bella. This is the type of cogent writing I like.

  11. Johnny says:

    These are just words on a page. He says, she says and I am none the wiser.

    1. 1314 says:

      That’ll be that then.

  12. Broadbield says:

    Excellent article and confirms what I long suspected. If the Left want to be taken seriously then they need to get serious about providing hard, well-researched evidence for their positions. We don’t need more Tory/Labour-like lies and misinformation to obfuscate and mislead.

    1. Stevie Anderson says:

      I really think it says what you want it to say and that makes it fine.

      Nothing whatsoever can be done about creeping privatisation of services. Is that the official line or just the de facto one?

      1. Broadbield says:

        “Nothing whatsoever can be done about creeping privatisation of services. Is that the official line or just the de facto one?”

        We have to keep pushing to keep services in the public sector, but the SG have to stay within the law. When we get Independence then we have to vote in MSP’s who believe that essential services must be brought under social control.

        1. Colin McCulloch says:

          Independence won’t necessarily hand the keys back in terms of public ownership, especially if an independent Scotland wishes to remain in the EU – Kimberley refers to EU competition law that could prevent wholesale nationalisation.

          If Scotland truly wants public services in public hands, with no legal threats from the private sector or EU, then it may have to consider life outside the biggest trading zone in the world.

  13. Alan Martin says:

    Great to have some clarity on this,…….though it does raise a huge question of competency re RISE eh…

    1. Valerie says:

      Certainly does in my mind. Up until now, I regarded them with a benign curiosity.
      Perhaps their effort might be better expended examining the outpouring of Unionist parties and media.

      Seems they think there just aren’t enough in the UK, that pursue the SNP with determination, by fair means or foul. Of course, we want our govt held to account, but these blind alleys? To what end?

    2. John Mooney says:

      It would appear Rise is quick to rush to judgement with “Dog Whistle” rhetoric but short in reporting facts I would be interested in Rise’s input to this article!

  14. arthur thomson says:

    I understand that a lot of people may feel frustrated that the SNP Government is not appearing to be more forceful on issues such as this. But this is one of numerous issues and the SG has to choose its battles very carefully. Glorious defeat is not a clever option.

    This does not preclude progressive voices outside of government being raised in anger but they need to be directed at the appropriate targets – the unionist parties who have fostered the culture of privatisation. They abandoned all sense of social responsibility in pursuit of middle England and the upshot is that reversing their policies is going to take time, patience and a lot of smart thinking.

    The SG is doing its best to negotiate its way through a quagmire. It isn’t pretty and it isn’t bullish but it is responsible and mature. In keeping with the post by Kimberley Cadden.

    1. Stevie Anderson says:

      Sorry but where is the evidence, other than rhetoric, that the SNP are at all uncomfortable with the privatisations we’ve experienced?

      I wholly agree with anyone who says the SNP are doing a decent job in very poor circumstances and that they are infinitely better than a Labour Party destroyed by its own couthy hubris. However in a world where social democratic parties have precisely zero policy responses to a system that is driving inequity and war it is foolish to content ourselves with another layer of self satisfied hubris when we reassure ourselves that because we couldn’t really do anything about Anglian then it is an outrage to level any sort of criticism at the SNP or Scottish Government.

      What is outrageous is the cosy common sense that the political economy of new liberalism, even when in the charge of the really rather nice SNP, is anŷthing other than more of the same madness that eschews from Westminster.

      I really hope that the upcoming SNP conference is packed with ideas, vibrant and creative politics that might change Scotland. If we are to base our hopes on the privatisation to Anglian of part of our public services then I rather think “don’t rock the boat” will be the theme rather than Another Scotland is Possible.

  15. Colin McCulloch says:

    I can accept that the options of the SNP were limited with regards to non-domestic retail provision of water, but I do wish they had been prepared to fight anti-sovereign EU and UK competition laws as vigorously as they seemingly plan to fight the same entities over alcohol minimum pricing.

    Wouldn’t it be great on the day when the Tories sold off the last of the publicly owned shares in Royal Mail that we had a Government that just declared that the vital services that our society relied on would no longer be subject to largely erroneous “market forces”?

    Before people leap in and say “the SNP can’t as it doesn’t have the powers to beat the EU or UK” – at least a very clear statement of intent to nationalise the vitals might build momentum and support elsewhere in the EU amongst similar minded political movements.

  16. Jan Cowan says:

    Excellent article by Kimberley Cadden. Cleared things up for me and put my mind at rest.

  17. thomaspotter2014 says:

    Looks like RISE have FALLEN at the first hurdle in their haste to have a bash at the SNP.

    Deary deary me.

    More research required before MINCE slander is broadcast.
    Cheers

    Bellacaledonia-get a fucking grip!

  18. 1314 says:

    This seems to be an authoritative and well researched article. It is certainly well written and clears a way through the general opacity of officialese. But just as it would have been as well to wait for this before jumping on the SNP baadprivatisers wagon – it might be an idea to wait for a response from RISE.

    I should perhaps add that while I would consider giving my list vote to RISE – I’ll not do that on the basis of what they think of the SNP. So far it’s still SNP/SNP with the possibility of SNP/Green or RISE but I need to be convinced by arguments about why I should vote for G or R not why I should not vote for the SNP.

  19. Conor Cheyne says:

    As stated by fact, the SNP have had the ability to stop this or at least dampen down the effects by changing the award criteria. These are the facts.

    However, this is not about targetting the SNP. This is about keeping public assests in public hands, regardless of who is in Government. I understand people would like to defend the SNP. But while doing so, I have yet to see any damnation towards the fact it is being privatised. I would be able to accept it a bit more even if i don’t agree if there were comments such as

    “SNP can’t do anything although the fact this is happening is still outrageous and SNP must do what they can to change these things”

    1. Martin says:

      “As stated by fact, the SNP have had the ability to stop this or at least dampen down the effects by changing the award criteria. These are the facts.”

      The criteria used was the best price/service package, i.e. the best value for money. What criteria are you suggesting they should have used, “let’s award it to the public company”? How is that even a criteria in a competitive tender? Does that sound legal to you?

      “This is about keeping public assets in public hands, regardless of who is in Government.”

      What assets? Water and sewerage pipes? Water and wastewater treatment facilities? Pumping stations? Reservoirs and storage facilities? Their are all still publicly-owned. Anglian will only be providing billing, metering and water efficiency advice services.

  20. Mark Crawford says:

    Even if this article supplied a contrary opinion from a rival academic, all we would have is a stalemate, a disagreement in law – which is not to say that “anything goes” as long as you have an academic to back you up but, rather, that (especially when the dispute is a political one) you cannot definitively close the hermeneutic circle in the way that this article attempts to do. In this case, the hermeneutic circle can only be closed by politics or legal judgement. (Evidence that the author tries to close the hermeneutic circle comes from her insistence that what we are dealing with is not a legitimate disagreement between different legal opinions but, rather, a deficiency of cognition on the part of those who authored the RISE report who, we are told, “misunderstand” and “lack familiarity” with the relevant legislation – all of this is intended to say to the reader: ‘We are dealing here with stupid people not worth listening to; rather than a legitimate difference of opinion.’)

    What is revealing is the way in which SNP supporters rush to defend their party’s position rather than question the political (and, perhaps, but not necessarily legal) judgement of their leadership. If there are legal academics who say that “the case for a legal obligation to compete retail aspects of water distribution rests on shaky ground”, then I expect my party – if it is genuinely against the privatisation of public services – to shake that ground (which is a question of politics as much as law). Why do SNP members expect so much less from their own party?

    1. tartanfever says:

      I think what most people are fed up with is the ‘tabloid rhetoric’ of the the likes of Common Weal, Rise, Stephen Paton, Michael Gray, Riddoch and MacWhirter to bluntly put out the line that

      ‘Scottish Water is being privatised’

      It simply isn’t.

      Instead of the discussion that this article’s in depth analysis provides a basis for, we have some extraordinary head in the sand stuff going on on other websites and blogs that is frankly disappointing.

      Have the people mentioned above even acknowledged that they have read this article ? – No

      Are they busy whining that people have taken offence to their stupidity and called them out for it ? – Yes

      1. Mark Crawford says:

        You know, I remember after the referendum result, Alex Salmond said there were “other routes” to independence. That was his reading of the legalities of it… Then, on the Marr Show this week, the First Minister said that, by definition, she believed there will be another referendum because she believes Scotland will be independent in her lifetime and that “would require another referendum.” That is her reading of the legalities of it.

        Perhaps Bella will in the future publish an article by Mr Salmond, explaining his reasons. Or perhaps the FM will publish an explanation of her legal reasoning of why the SNP leadership has changed its mind and decided that independence requires a referendum.

        For my part, for purely political reasons (nothing to do with the law), I don’t believe in another referendum. For political reasons (nothing to do with the law) I do believe in those other routes – which is why (on this aspect of constitutional politics, at least) I am a Salmondite and not a Sturgeonite. So, it’s quite reasonable for me to seize on any legal reasoning which gives oxygen to the Salmond position.

        Equally, as someone who does not want Anglian Water anywhere near our water provision, I am justified in drawing breath from those expert legal opinions on the matter quoted in the RISE report. Similarly, I accept that if people’s political judgement is that they want to defend the SNP’s position on the basis of “my party, right or wrong” then, yes, it is to be expected that they will accept the unreferenced analysis of someone whose legal qualifications are unspecified.

        1. tartanfever says:

          Mark,

          the issue I’m talking about isn’t the awarding of the tender to Anglian Water ( of which there are questions and debate to be had)

          the issue is with those that report that ‘Scottish Water is being privatised’, clearly trying to infer that the entirety of Scottish Water is under threat. That is provably not true.

          Scottish water remains a publicly owned company, as do domestic water supplies as do the employees, infrastructure and all other assets.

          All those I have mentioned have all in the last few days stated that Scottish Water is being privatised and not, more accurately, ‘ the contract for retail water supply has been awarded to Anglian Water’. Retail water supply is only one part of the water services provided in Scotland.

          It is the headline reporting of this story that I find troublesome.

          1. Mark Crawford says:

            The meter and billing part of water provision is being privatised. In the reports I’ve read, that part of water provision is currently performed by Scottish Water but will now be the domain of Anglian Water.

            Privatisation often takes place in a “creeping” fashion, bit by bit. That’s why it is so alarming to not only see the SNP rush to make this decision, but also to see SNP supporters rush to defend the decision even when advised (by the RISE report) that alternative expert legal opinions exist about whether there is any need to do this. It suggests a complete lack of political will.

    2. Martin says:

      “The meter and billing part of water provision is being privatised. In the reports I’ve read, that part of water provision is currently performed by Scottish Water but will now be the domain of Anglian Water.”

      Incorrect. It is not performed by Scottish Water, but by Business Stream, its legally separated retail arm which compete for the provision of these services on a level playing field with the other market participants.

      1. Mark Crawford says:

        Well at least now we are reaching a recognition of where we disagree, because whereas you say that Scottish Water and Business Stream are “legally separate” and therefore you (presumably) reject the idea that any privatisation is taking place, the “legal” separation of SW and BS is irrelevant in my analysis. One is a subsidiary of the other. In fact, for you to give the separation between them significance only further highlights my point that defenders of the SNP’s actions here are answering legal questions before political ones.

  21. Roger Hall says:

    Much of this discussion has been about the consequences of the private market for non-domestic water in Scotland which started in April 2008 . I wonder what are the likely consequences of the Coalition’s Water Act (2014) which creates a UK wide private water market, starting April 2017, enabled by Nicola Sturgeon’s Legislative Consent Motion 144, in October 2013 “to create a seamless Scottish-English retail market” ?

    1. Martin says:

      One of the consequences will be that Business Stream, the retail arm of the publicly-owned Scottish Water, will have the opportunity to boost their revenues and profit by serving customers all over England.

  22. Frank says:

    Although this article is informative, it could easily have been titled ‘why there is no alternative’.

    Sadly, the article, and many of the comments which follow, focus too much on defending the SNP rather than engaging with some of the substantive issues this debate raises. For example, whilst the SNP are in office, are they actually in power? The article implies that the SNP have to engage in practices against their will. ‘Privatisation’ policies, (I appreciate the term is problematic in this context), or market mechanisms are now so firmly embedded in law that some practices may be beyond the control of democratic governments.

    Surely the suggestion that there is no alternative to the (neoliberal) rule of law needs to be debated. For me, this is where the discussion ought to be. A narrow focus on party politics misses more fundamental points.

  23. Ben Hillman says:

    This article is clearly very well researched, well written, thorough and informative, but it’s conclusions are based on the premise that we have to take seriously the structural forces at work inherent within the system, i.e. the potential effects deriving from the threat of force (financial, political or physical) in case we did something we wanted to do rather than we were told we had to do. To repeat something that Stevie Anderson said earlier, that do we have to ‘accept these laws as natural laws and not contingencies based on relationships between people?’. I think that’s spot on.

  24. Clydebuilt says:

    Excellent article, Kimberley, clearly explains the situation.

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