It is easy to assume that it was public pressure which forced the Victorians in the UK to clean up the UK’s over-polluted 19th century waterways. But while that was partly true it is not the whole story.
Dr Ben Pontin points out in his work The secret achievements of nineteenth century nuisance law that much was done behind the scenes in the courts by concerned individuals who sued public authorities for failing to stop pollution. That was history. But today we trust the system and surely the regulated monopolies of the UK water companies provide safe and secure water services so there is no such need of scrutiny through private legal actions? So we would have thought, until last week when something remarkable happened.
Wet suit
Fish Legal, a charity which protects the legal interests of anglers fed up with the pollution of the UK’s rivers, took a test case against Yorkshire Water Services Ltd, Southern Water Services Ltd and United Utilities Plc, the Department of Environment, Food and Rural Affairs (Defra) and the Information Commissioner for England and Wales.
Specifically, their suit alleged that because England and Wales’s privatised water companies contributed to the management of public resources (our water environment), they had a legal obligation to disclose data they hold about river pollution. Moreover, Fish Legal argued that even privatised water companies were “public authorities” from the point of view of the legal requirements to disclose environmental information contained in the 2004 Environmental Information Regulations (EIR) and the 1998 Aarhus Convention. The water companies argued that they are not public authorities and therefore not beholden to the requirements of the EIR.
Clean winner
On February 16, 2015 appeals against lower division rulings that water companies could be considered public authorities were rejected by the Upper Tribunal of the Court of Justice of the European Union (CJEU), establishing an important legal principle: because water companies exercise many powers that are not available to purely private actors, they are “public authorities”, with all requirements, powers and burdens attending that legal status. In other words, although UK water companies are private economic entities they also perform public functions and, more to the point, exercise powers not available to purely private entities (e.g. compulsory purchase powers, powers to impose hosepipe bans, etc.).
Any first year law student will tell you (following the incredibly well known cases of Foster v British Gas and Marshall v Southampton Area Health Authority) that utility companies can be treated as public authorities for the purposes of EU law. So in practice it was always going to be a difficult position for water companies to defend and Fish Legal were successful in their action.
Court in the act: the CJEU’s decision widens water companies’ duties. Photo by Razvan Orendovici, via Wikimedia Commons
As with the nuisance actions of the 19th century which led to the creation of our modern water services systems, this action by Fish Legal opens up a new era by clearly establishing the legal basis for the public authority obligations of otherwise private water companies. The ramifications of this ruling could extend far beyond merely having to report environmental information. For the moment though all attention will be on greater disclosure of the extent of river pollution in England and Wales. Charles Clover writing in the Sunday Times (£) said:
‘There is no delicate way of saying this. There is a lot of untreated sewage in our rivers and coastal waters that nobody wants to talk about.’
People are going to start talking about it now.
This article originally appeared on the international water security network’s blog.
Belated reply, my apologies.
Anglers own the right to catch fish in rivers so have a proprietary interest. This means they have standing (ie access to court) to take a legal action. As a result (and because it’s a valuable right) they have set up a mutual legal fighting fund called Fish Legal (formerly the Anglers’ Conservation Association). Fish Legal and its predecessor have been amazingly successful at making sure our rivers are kept relatively clean and have routinely sued (successfully) industry and farmers for pollution. It’s an excellent (if a little unsung) organization.
Mr T Appleby, why is it that it takes an Angling Fraternity to uncover this issue? We know that others that have asked the same issue before-hand were given short shrift over the issue.
Are we now in a different movement where we can now ask real questions which have beleaguered the call for a response to the call of the common good? If thar which is applicable to one section of the community gets this action – anglers – then why not others for an even larger concern to water rates payers.
We will all recall that the Regional Private Water Companies, formed in 1989, took over the roles from the previous Water Authorities (England and Wales.) In a transitional period (or before-hand) a Regulatory Body was formed with powers to observe and enforce Legislation and Directives. They the Regional Water Companies [RWCs] set out their tasks to put in place a series of Capital Work Programmes to meet these obligations: many of these were time-related with expectations by the Public of completion dates linked to these regulations by the specific times/dates. Typical of these would be the Shell Fish Directive, and the Bathing Waters Directive or the Nitrates Directive. Many of these RWCs recognised this was a fairly onerous task but still went ahead with them, whilst others seemed to look at them with a degree of being less than enthusiastic and they appeared to promise the necessary actions on the one part whilst setting out a different task managed by their accountants and they effectively delayed the issues.
So, RWCs would prepare a consultative document to promote a programme of work (or a specific project) involving discourses with the local public about the scheme which inevitably would cause “disquiet and anger” and a “stand off” would arise which would then result in nothing being progressed and the requirement would pass from one Regulatory Term (5 years) to the next. Throughout this time frame Water Rates were still being paid by the Public in the area for the service, and the respective receipts would end up in the coffers of the RWCs. Elsewhere around the RWC’s over-seeing similar programmes of work were carried out apace and grandly announced in major publicity stints which confirmed compliance remits. Around the wider European Union [EU] outside the UK similar managed programmes of work were also followed through and indeed many of these were given huge accolades for meeting the Directives ahead of time, but and we record, some were not completed within the time frame.
Time marched onwards and many of the RWCs in the UK (and their equivalents outside) having passed through the first period of Regulated Works moved onwards to further their next period and beyond and these continued to promoted plans and and programmes that were “delayed” previously. However they were allowed and were included in the budgetary forecasts. And the bank-rollers of all of this continued to be the Public by Charges and/or Taxes who were continually asked to forever accept the new charges irrespective of whether part of the service was in fact really provided. And as is the want, during this time, a number of the RWCs were sold off as financial concerns – much like selling antique furniture – where the profits were seen as grossly out-of-kilter by the Public who had no say in the issue. As with most Privatisations the Public were cajoled in to selling their shares for an immediate profit within the first years after the sell off. After the “Don’t tell Sid” issue with British Gas what would you have expected…buy shares at £200-00 per quota and sell them off within a year at £450-00, and thank you very much Government! (It was not quite the same in the other parts of the EU, as they dabbled in Privately-Financed programmes separately.) The consequences as seen by the Public was a ruse where these programmes were “seen” to be managed to be “obstructed” through “manipulated” consultations on the back and use of planning issues. The inevitable was delay after delay, but thoughout this time the charges were still coming in as though these works had been carried out and working.
Now is this right? Here then is the conundrum that has now been exposed in this document here in Isonomia. This is all very well when Companies are restricted by law as being Private Companies that have little if any powers to do anything outside their own experience. But a Monopoly that was formed to Mirror-Image the actions of A State-Owned Monopoly is a different issue. There has to be redress and the redress that is needed is to penalise these later-day Private Monopolies through repaying back their customers. But it is said, these Private Monopolies do not hypothecate their revenue stream to specific programmes or projects. Very true so who then is the liable entity that has to be called before the court? Effectively it is the Private Monopoly that sold its original base Company to the onset buyers and the then later sellers and buyers who promulgated the issues by ignoring the realities of Failure to Meet the Regulatory issues. This is exactly what we read by the inference in this article raised by Anglers. Across the rest of the EU the redress has come about by the fact that penalties – often punitive – have been applied to the Public Monopolies through their operating Privately Financed Contracting entities.
Is this logic faulted?
A Barrister friend of mine offering an un-qualified opinion suggests not.
So if the Anglers get their way here why not the Water Tax Payers?
Hi Peter,
That must be a record – a comment longer than the article! Just a brief response from me. I don’t think that the fact that it was anglers who are sufficiently well organised and funded to take this case through to a conclusion means that the ruling applies only to anglers.
Fish Legal appear to have established an important point of law regarding the obligations of utility companies regarding environmental information. It is affects any party with a case that turns on whether a private water utility company is in certain respects subject to public authority obligations.
It isn’t clear to me how far your concerns would be affected by this finding – especially if the responsibility for ensuring that action was taken to implement directives continued to sit with Government and Regulators. But perhaps you can persuade your barrister friend to work up a more formal opinion regarding where the responsibilities sit.
It was never intended to be that long, itjust had to be countenanced by being “diplomatically obscure” by the Barrister colleague as there could be some significant over-tones with the issue.
I often feel as though that these issues raised within Isonomia are of such importance that they need widening to a broader audience. The best learned external audience I know are in the Chambers of Law and in the European Union. Hence the indirect and sometimes “enhanced phrases.”
Your points are noted. The material questioning that started this run of events actually has had precedent with “other environmental” areas, and it is the Freedom of Information Act that is the main cursor for disclosure here.
There are some significant prgrammes of working the area that have been questioned in recent time and the ones that have been thrown across my path – as an “independebt” viewer are significant for the industry. Fines that have been levied in the European Union against Municipal/Departments/Countries are major events and are accountable but when a Private Monopoly is involved there are other ramifications involved.