On March 3, 2012, the Saturday Sun published an article entitled, “BWA Sacred Cow”, which claimed that the Barbados Water Authority (BWA) is no longer regulated under the Utilities Regulation Act (the Act) chapter 282 of the laws of Barbados. This in effect means that Fair Trading Commission (FTC) cannot set water rates or hear and determine any complaints about the quality of service provided by the BWA. Any such complaints against the BWA can only be made to the BWA. As the article stated,
“They [BWA] are judge, jury, everything. You have to accept what they say. So water in this case is creating difficulty because of the change that was made in 2009 when it was removed . . . it is creating a lot of problems for the consumers”.
The obvious question must now be: How did the regulation of the BWA get back to this undesirable situation? The answer is not the most honourable thing that the present Government has done.
In order to honour a promise made to the electorate to regulate water rates by the FTC, the new DLP administration published an order to that effect in March 2009. That order was made in accordance with section 36 of the Act which states:
36 (1) The Minister may by order designate the utility services to be regulated by this Act.
(2) An order made pursuant to subsection (1) shall also list the service providers supplying the designated utility services.
However, when Government wanted to raise water rates, rather than allow the FTC to do its job, they did the unthinkable and betrayed the electorate by publishing an order, on June 23, 2009, purportedly under section 36 of the Act, to remove the supply of water and sewage services from the purview of the FTC.
While I readily admit that the Minister has power to remove the supply of water from the purview of the FTC: he cannot do so merely by changing his mind and signing an order. The procedure for exempting a service from regulation of the FTC is set out in section 37 of the Act. He can exempt a service and the service provider from the provisions of the Act on an application from the service provider under subsection 37 (1) on the recommendation of the FTC or on his own initiative in accordance with subsection 37 (3) which states:
The Minister may on the recommendation of the Commission or on his own initiative exempt the utility service supplied by any service provider or part of that utility service from the application of all or any of the provisions of this Act, where the minister is satisfied that the market for the utility service supplied by the service provider is effectively competitive.
Before the Minister could have exempted the BWA he should have been satisfied that the supply of water was effectively competitive. Since he has already given the exemption, he should be in a position to tell the country who are the other suppliers that are effectively competing with the BWA.
When he signed the order to exempt the BWA on June 23, 2009, it paved the way for the board of directors of the BWA to meet, on Friday, June 26, 2009, where they made an order to increase water rates by as much as 60 per cent. The Cabinet then gave its approval on the same day according to the order which was published as S.I. 2009 N0. 69.
I went through all of that to simply say that that the Minister did not have the power to exempt the supply of water from regulation by the FTC as he could not satisfy the condition that the service was effectively competitive. As a consequence, his action should be declared null and void and of no effect. Accordingly, all monies collected as a result of the improper procedure employed by the Government to increase water rates should be refunded.