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This paper will examine reforms in water services law in two jurisdictions, Scotland and South Africa, and set out an analytical framework for such a reform process. In both jurisdictions, despite their many differences, there is a commitment to the public sector, and to finding ways to better regulate the public sector. From the commonalities, it is possible to draw out an analytical framework against which the process of law reform may be assessed.

Scotland and South Africa are comparators with many contrasts, and especially so in the provision of water services. Nonetheless, it is submitted that there are commonalities from which a common framework may be developed of use to other states in a reform process, as well as lessons arising from their individual circumstances. In South Africa, the approach to water services combines pragmatism – a recognition that the fullest provision cannot be made, and that service entitlement is qualified – with a principled approach that targets the poor with a minimum level of service. At its broadest, there is a sustainable development agenda considering the needs of both the present and the future – ‘‘some for all forever’’. There is an acceptance of some private sector involvement but with a statutory presumption in favour of the public sector. And there are clear definitions of a basic level of service standard for both water and sanitation, along with a ‘‘free’’ uncharged tranche of basic water, although there may still be concerns as to its level and the calculation of the numbers of persons in the household. The reliance on local government as service provider, whilst common in many jurisdictions, makes it more difficult to prioritise the water agenda. In Scotland, despite political pressure in the early 1990s, there has been no move to privatise along the English model, i.e. divestiture of assets, and such is most unlikely to occur. There has been the pragmatic acceptance of build–own–operate–transfer schemes for waste water plant, and such has also occurred in South Africa, and some competition of retail services Table 1 An analytical framework for reform of water services law. Legislative requirement Options for provision Regulators: Economic/duties Ministry/Sector agency (e.g. WIC, OFWAT)/Multi-utility (e.g. Competition Authority) (Separate consumer body?) of supply/quality standards Environmental Ministry/Environment agency (As provided in water resources law) (Licensing frameworks for abstraction and discharge) Providers Local government; Water board/agency; Private company/s Vertical dis/integration Abstraction – treatment – distribution – supply Regional; (‘‘competition by comparison’’?) Horizontal dis/aggregation Private sector involvement Forbidden? Public sector preference? Short term contracts; BOT etc.; Leases/Concessions; Divestiture (rel. with integration) Constitutional/Human Right High level; additional enforcement mechanisms High level duties Universal Service Obligation; Conservation, efficient use (water efficiency); Sustainable and secure supply; Consumer protection; Competition; Economic efficiency; return on capital Duties of supply Universal (progressive?); In service areas; Reasonable cost; Drinking water quality; Waste water treatment; Customer service standards Tariffs Two-part; Banded; ‘‘Free’’ (uncharged) tranche? Metering Presumption of metering? Costs and benefits; All users/Not domestic/Water stress areas Disconnection Not permitted; Not from Free Water; Restrict Supply Emergency Powers Climate/infrastructure/emergency; Reasonable steps and limitations?; Drought orders in the commercial sector. However, the focus in the last few years has been on rigorous financial controls, to seek to regulate the public sector into something approaching private sector efficiency. There is commonality with South Africa in both the political support for a public service, and the pragmatic acceptance of some private sector participation; but Scotland is in a better position to raise private capital and perhaps, to exercise control over private partners. In both countries, the emphasis is on public sector provision, along with most water services in most countries. This has not meant and need not mean the prohibition of private sector involvement but rather an appropriate role, for example in the construction of new plant, or of limited contractual activity that can be adequately supervised. The critical focus is on effective regulation, and the information flows necessary to support that, in order that water and sanitation at an appropriate level can be provided with proper protection for the poor and unserved.