Water companies have until now not been treated as EIR public authorities. Fish Legal and Mrs Shirley between them challenged three water companies on this point and the long running campaign (often referred to for ease as the “Fish Legal” case) was decided in late February. Even though the Information Commissioner and First-tier Tribunal agreed with the water companies, the Upper Tribunal (which is the highest UK tribunal for determining issues relating to the EIRs), having consulted the European Court of Justice (“CJEU”), did not. The outcome was that the three water and sewerage companies concerned were found to be EIR public authorities.
The decision noted “The extent to which the CJEU’s judgment will result in bodies being classified as public authorities is unclear and undecided, but potentially wide.”
The European position
Unless successfully appealed, the decision will have major consequences, not only for the three affected water companies but also more widely. This will not just be in England and Wales. The EIR implement EU Directive 2003/4/EC which also applies across all EU member states.
The EU Directive imposes the obligations of disclosure upon a “public authority” - which Article 2 (2) defines as:
- government or other public administration...
- any natural or legal person performing public administrative functions under national Law, [including specific duties, activities or services in relation to the environment];
- any natural or legal person having public responsibilities or functions, or providing public services [relating to the environment] under the control of a body or person falling within (a) or (b).
The CJEU's judgment found that entities are "under control" of a government body (etc.) for the purposes of limb (c) of the "public authority" test, "if they do not determine in a genuinely autonomous manner the way in which they provide [their public] services since a public authority [covered by limbs (a) or (b) of the public authority test] is in a position to exert decisive influence on their action..." and confirmed that the manner in which that influence is exercised is irrelevant.
The judgment also considered what is meant by "a natural or legal person performing "public administration functions" under national law" (Article 2 (2) (b)). It concluded that a body will be performing those functions if it has vested in it (under national law) "special powers beyond those which result from the normal rules applicable in relations between persons governed by private law".
The UK position
From Europe the case was then sent back to the Upper Tribunal in the UK to consider the position under national law accordingly and come to a decision on those facts. Having done so, the Tribunal concluded that water and sewerage companies should be considered public authorities under the EIR by virtue of their “special powers”, not because they are under State control.
What are “special powers”?
The term “special powers” is perhaps not as exciting as it initially sounds. Essentially the Tribunal felt that to be carrying out public administration, the water and sewerage companies need to have the ability to do something, conferred by law, above and beyond those abilities which “result from the normal rules applicable in relations between persons governed by private law”. Something that makes them different from and gives them a practical advantage compared to all those other companies governed by private law. The water sector legislation and the terms of statutory licences to water companies were analysed in depth.
Examples given by the Tribunal of special powers under the specific water industry legislation (that are different to any powers available under private law) are to:
- compulsorily purchase any land anywhere in England and Wales;
- make byelaws in respect of the public use of their land or waterways;
- lay pipes in land other than the street;
- access another’s land, including to carrying out surveys or boring on the land; or
- impose a hosepipe ban.
Implications for other organisations
The three affected water companies (United Utilities plc, Yorkshire Water Services Limited and Southern Water Services Limited) must now comply with the EIR unless they successfully appeal the decision. Other water and sewerage companies with identical or equivalent special powers are likely to find it challenging to successfully convince the regulator that they are not also EIR public authorities.
More importantly, the decision means other bodies with “special powers” are now also at risk of being EIR public authorities: ”the reasoning in these cases is potentially relevant to other privatised, regulated industries that deliver a once publicly owned service: …telecoms…”. The greater the similarity between the legal framework, statutory licence provisions and powers of water and telecoms companies, the greater the risk of telecoms companies also being EIR public authorities.
Businesses in the telecoms sector should anticipate that following this decision they are likely to receive information requests from those assuming that telecoms companies are now EIR public authorities who are obliged to disclose environmental information on demand, or pushing for that outcome.
Businesses should ensure they are prepared for such requests and that they have an agreed approach to them which has been communicated to staff who may receive such requests. An EIR request may be made orally or in writing to anybody in the business. Ultimately, any failure to respond, deal in time, accept the business is an EIR public authority, or provide all requested information may lead to a compliant to the EIR regulator, the Information Commissioner’s Office, who will investigate and will determine whether or not the business is a public authority and if so, may order compliance and disclosure.
Even where the regulator accepts arguments by a business that they are not an EIR public authority, that decision can be challenged and may be decided differently by an Information Rights Tribunal. Businesses need to start analysing their position and any potential “special powers” bearing in mind the guidance from these recent cases.
Even if the business is confident it is not an EIR public authority, others in the sector may be and communications with and records held by those others may now become accessible to the public under EIR. The frankness of such communications and how they are provided should be reviewed and adjusted where required to reduce any EIR risks.