Anglers take battle for water companies’ environmental information to Aarhus Compliance Committee in Geneva
The legal arm of the Angling Trust, Fish Legal, has sent a letter of complaint to the Aarhus Compliance Committee in Geneva following last week’s decision by the Upper Tier Information Tribunal that water and sewerage companies in England and Wales are not subject to Environmental Information Regulations.
Its lawyers have also written to Defra, urging them to intervene and to state that water companies are covered by the provisions of the Aarhus Convention on access to environmental information, to which the UK is a signatory.
The Tribunal’s decision was issued in response to an appeal to an earlier decision by the Information Commissioner's Office that the water companies were not “public authorities” for the purposes of the regulations.
In 2009, Fish Legal requested records from several water and sewerage companies – including United Utilities and Yorkshire Water – on the performance of their combined sewage overflows which allow faeces, urine and washing detergents to pass untreated into rivers, lakes and coastal waters when wastewater treatment works are overwhelmed by rain. The requests were refused by the utilities who argued that they were not subject to the regulations and therefore not obliged to release the data. Fish Legal’s case was stayed pending the outcome of last week’s Tribunal Decision.
Commenting on the Tribunal’s decision, Justin Neal, Head Solicitor for Fish Legal said:
“We are left in a position where we have to rely on the good will of the water companies to tell us when, where and how often they are polluting our freshwater and marine environment. The very fact that they refused our request in 2009 about combined sewage overflow pollutions shows that they are hardly falling over themselves to put this information in the public domain. Voluntary disclosure just doesn’t work and, especially in the era of ‘operator self-monitoring’, this decision makes it very difficult for us to scrutinise the water companies’ activities and to hold them to account when they pollute our waterways.”
“Had the water companies simply accepted that they were subject to the regulations, their confidential and commercially sensitive information could be adequately protected by the exemptions available. One therefore has to ask, what is it that they do not wish the public to see?”
“It is not a satisfying state of affairs and it’s at odds with the Aarhus Convention and the European Directive on Public Access to Environmental Information. We are not prepared to just sit back and accept the ruling in this case and we’re currently considering a number of options for challenging it.”
Mark Lloyd, chief executive of the Angling Trust and Fish Legal said:
“Tens of millions of people rely on high standards of water quality for water sports and angling. Water companies’ activities affect nearly every river and beach in Britain and every family in this country relies on these companies to provide them with safe drinking water. Surely we should have the right to know what they are putting into our rivers and coasts:- and into our drinking water.”
Notes to Editor:
1. Fish Legal currently has several ongoing legal cases against water companies for damage to fisheries in England and Wales.
2. Fish Legal’s communication to the Aarhus Convention (dated 3rd December) is available on request.
3. The Information Tribunal Decision Notice is available HERE
4. The Information Commissioner’s Office initial Decision – which was subject to this appeal – can be downloaded HERE.
5. The Water Act 1989 privatised the water and sewerage industry in England and Wales. The industry is subject to provisions under the Water Industry Act 1991. The appeal hearing hinged on whether the water companies fell within either s2(2)(c) or s2(2)(d) of the Environmental Information Regulations 2004.
6. The United Kingdom is a signatory to the Convention on access to information, public participation in decision-making and access to justice in environmental matters (the “Aarhus” Convention) which allows for a purposive interpretation of national legislation to ensure its objections.
7. The Aarhus Compliance mechanism is unique in international environmental law in that it allows members of the public to communicate concerns directly to a committee of international legal experts empowered to examine the merits of a case.