EU Judgment paves the way for UK Water Industry to come clean about its dirty secrets
The public’s ‘right to know’ what gets dumped into our rivers received a welcome boost this week when the Court of Justice of the European Union issued a judgment on important questions of EU law related to public access to environmental information about the activities of the privatised water and sewage companies in the UK. This judgment came out of Fish Legal's ongoing case at the UK's Upper Tribunal which aims to overturn the Smartsource decision in 2010 that denied the public access to information about water companies. [Case references in notes below].
The Court of Justice ruled that as a matter of principle water and sewage companies can be subject to disclosure obligations to the public, but that it is for our national courts to rule definitively on the facts in this case. Lawyers at Fish Legal are hopeful that the judgment will lead to the establishment of public rights of access to environmental information held by water companies. The Upper Tribunal is likely to rule on this matter early in 2014.
Although they were once state-owned, water companies were privatised in the early 1990s and have always considered themselves outside the UK’s freedom of information obligations. Fish Legal often asks water companies for information about pollution and other incidents affecting its members' fisheries so that it can fight for compensation to pay for restoration, to campaign against water pollution or over-abstraction, or to press the Environment Agency to take regulatory action. It is currently fighting more than 60 legal cases on behalf of its members.
Whilst some companies have responded, many have on numerous occasions refused information requests from Fish Legal, as well as from other concerned members of the public. This ‘secrecy blanket’ has protected parts of the water industry from proper public scrutiny, and in some cases from legal action.
Fish Legal has therefore been battling through the courts for many years to get the industry – one of the biggest polluters of the water environment in the UK – to be required by the Environmental Information Regulations (EIRs) 2004 to reveal what they allow to spill, leak and seep into our lakes, rivers and coastal waters.
The legislation places a duty of disclosure on those subject to it and important safeguards that the public can rely on to receive complete and accurate information from organisations within a certain time frame. If they don’t comply, there is a formal process of complaint and appeal to the Information Commissioner, and through the courts if necessary. In the Smartsource case the Upper Tribunal ruled that water companies should not be subject to the EIRs, but the CJEU judgment now casts doubt on that decision after Fish Legal appealed against the original decision.
Fish Legal has funded the substantial legal costs of taking on some of the country’s biggest companies with income from its member clubs and fisheries and from subscriptions and donations from tens of thousands of anglers who are members of the Angling Trust and Fish Legal.
William Rundle, Head Solicitor at Fish Legal, said:
"Today's judgment sets out clear guiding principles for the continuance of our case. It is now clear as a matter of principle that the privatised Water and Sewage Companies may well be subject to public rights of access to environmental information, where certain criteria are met. This ground-breaking statement of principle will be subjected to an examination of the specific factual circumstances by the Tribunal which will give its final judgment shortly."
Mark Lloyd, Chief Executive of the Angling Trust & Fish Legal said:
“Although this is not a final victory in this case, it paves the way for one in 2014. It’s high time the water companies came clean about what they put into – and take out of – the nation’s precious water environment. It’s not just anglers who want to know what damage these huge companies have done to their fish, there are millions of people who swim in rivers, lakes and the sea who should have the right to know if the water has been polluted. We will keep fighting to remove this ‘secrecy blanket’ and to ensure that all the water companies are forced to open up to proper scrutiny.”