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Water companies may hide their dirty secrets, rules Information Tribunal

13.12.10

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Water companies have always been reluctant to supply anglers with information about pollution – but a Tribunal which deals with appeals on information issues has now concluded that water and sewage companies in England and Wales are not covered by laws on freedom of information.

This is a huge blow to the Angling Trust's campaigns and legal action to make water companies accountable for the damage they cause routinely to fisheries up and down the country.

The decision means that water companies will not be compelled to reveal when, where and how often they pollute our rivers, lakes and coastal waters. Instead anglers will have to rely on the good-will of these profit-driven utilities to expose their activities voluntarily.

The decision comes at a time when the Environment Agency (EA) is depending on the water companies to monitor their own discharges into streams, lakes, rivers and coastal waters through the new policy of 'Operator Self Monitoring'. This means that even the Government's regulator may not know much about what these companies are getting up to. This particularly concerns the Angling Trust's legal arm, Fish Legal, as its lawyers currently need access to this information to fight numerous legal cases arising from sewage pollution incidents on behalf of Fish Legal members which the EA has not properly investigated.

The Tribunal's decision agreed with the view of the Information Commissioner that the water companies are not "public authorities" for the purposes of the Environmental Information Regulations 2004 (EIRs). Several organisations had appealed the decision of the Information Commissioner, including Fish Legal, which in 2009 had asked for data from United Utilities and Yorkshire Water on the performance of their combined sewage overflows (CSOs) which allow faeces, urine and washing detergents to pass untreated into fisheries when treatment works and sewers are overwhelmed by rain. The water companies argued that they were not covered by the EIRs as they regarded themselves as commercial companies only. Fish Legal's case was then put on hold pending the outcome of a lead case brought by SmartSource to settle the legal issues – which were then decided in the water companies' favour. Fish Legal is now looking at its legal options. Its lawyers have already written to the Aarhus Compliance Committee in Geneva and to DEFRA urging them to intervene following the ruling and to direct the Information Commissioner to agree that water companies are covered by the provisions of the international Aarhus Convention on Access to Environmental information, to which the UK is a signatory.

Explaining the significance of the ruling, Mark Lloyd, Chief Executive of the Angling Trust and Fish Legal, said:
"Our lawyers have been trying to force several of the water companies to reveal just how much sewage they spew into rivers and coastal waters through combined sewage overflows (CSOs), which are used when the sewers get overloaded.  I think we anglers – and everyone else with an interest in clean water – need to ask why these companies are so desperate to keep their dirty secrets hidden away from public scrutiny.  Given the scale of their activities, which affect everyone who uses the water environment and drinks from a tap, I think the public should have the right to freedom of information about what they get up to.  Thanks to the support of our members, we will continue to fight for this right."

Notes to Editor:
1. Fish Legal currently has several ongoing legal cases against water companies for damage to fisheries in England and Wales.
2. The Information Tribunal Decision Notice is available for download HERE (scroll to bottom of page)
4. The Information Commissioner's Office initial Decision – which was subject to this appeal – can be found HERE (scroll to bottom of page)
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. The system is different in Scotland and Northern Ireland which both have a single water company which are under public ownership.
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.

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