It is easy to assume that it was public pressure which forced the Victorians to clean up the UK’s over polluted 19th century waterways. But while that was partly true it is not the whole story. The University of the West of England’s excellent legal researcher 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 I would have thought, until last week when something remarkable happened.
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. On 16 February 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 the 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 are 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.
Fish Legal were successful in their action. 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 (paywall) 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.