Enemy of the people – what price water information?

Smartsource v Information Commissioner + 19 other parties [2010] UKUT 415 (AAC) 23rd November 2010 – read judgment

Ibsen’s Enemy of the People has Dr Stockmann complaining to his Norwegian municipality about contamination of its water supply. We think that these sorts of disputes are part of a modern problem, so it is striking to find Ibsen being invoked, judicially, in this far from 19th century fight about environmental information.

The question was the less than dramatic one as to whether information about water and wastewater billing etc was environmental information, and that in turn involved deciding whether water companies and sewage undertakers were “public authorities”. Ibsen might not have found that answer too difficult to provide: what local authorities used to do in the 19th century and much of the 20th century, here, in Norway, and elsewhere, included supplying you with clean water and taking away your foul water.
However, things have moved on politically and commercially a little since 1882, and the 2004 Environmental Information Regulations take a rather more nuanced view as to what “public authorities” are. Some authorities are specified by Parliament in a list attached to the EIRs, but water/sewerage undertakers are not on the list. The issue which arose was whether they were “any other body…that carries out functions of public administration” (reg. 2(2)(c), or “any other body…under the control of [a government department] and (i) has public responsibilities relating to  the environment; (ii) exercises functions of a public nature relating to the environment; or (iii) provides public services in relation to the environment.” (reg. 2(2)(d). So, in defining public authority, you can see that the legislator has its eyes on administration or control by an administrator.

Now, come back to the starting point. Water, clean and dirty, may traditionally have been run by local government but are present-day water/sewerage undertakers administrators or under the control of administrators?

This was the subject of this tribunal decision, or, to give its full and catchy title, the Upper Tribunal (Administrative Appeals Chamber). And the Tribunal said, no, they were not public authorities.

In doing so, they considered a whole mass of texts on the whole idea of “public” versus private, from different contexts, and all public and human rights lawyers may find something to think about in their discussion and conclusions. They looked at the UN-ECE Aarhus Convention, from which the definition of public authority was drawn (the EIRs came from a European Directive on Environmental Information, which itself was based upon the Aarhus Convention) – and the less than penetrating Guide put out by the UN-ECE. They looked at cases on the concept of “public authority” in the human rights context, such as Cameron v. Network Rail [2006] EWHC 1133 (QB) (Railtrack), or YL v. Birmingham City Council [2007] UKHL 27 (care homes). They also looked at the EU concept of emanation of the state.

The upshot was that the Tribunal decided that the EIR definition of a public authority was narrower than the human rights one. But their reasoning was far from doctrinal. They looked carefully at the similarities and differences between water and the railways (the subject of caselaw). The appellants sought to say that the intensity of regulation and the statutory duties placed upon the water/sewerage undertakers made them public. But, as the water companies pointed out, the core administrative functions were placed not upon themselves, but upon OFWAT, undeniably a public authority. Yes, the water companies were heavily regulated, but that is far from a marker of being a public administrator.

As the Tribunal put it at paras. 94-5,

We agree…that the focus of [the Convention and Directive] is on capturing governmental and executive functions in their various guises…This must be in contradistinction to the activities of private commercial entities, which may be subject to a degree of State regulation, and indeed intensive State regulation, but still remain at arm’s length from the machinery of the State…there is an important distinction to be made between regulation and control.

One further interesting issue arose. A previous case on the EIRs (Port of London Authority v Information Commissioner [EA/2006/0083]) had raised the possibility that bodies might be hybrid under the EIRs, i.e. public authorities for some purposes, and not for others. The issue was raised whether because the water companies had some (admittedly limited) regulatory functions, for instance in the area of trade effluent, they fell into this category. The Tribunal thought that the concept was difficult in that it did not fit with the wording of reg.2.  Hence the human rights cases, based upon the different wording of s.6(3)(b) of the HRA, and its express recognition of hybridity, did not assist.
A postscript. Contrary to expectations, the appellant was not a NGO questing after environmental information, but a private concern trying to have, for free, the information which the water companies had collected (pursuant under their regulatory regime). This does not stop the entitlement to the information, if entitlement there be, but, if you are coming at the whole issue from a political point of view, it is perhaps a corrective to the 19th century mindset raised at the top of this blog.
David Hart Q.C. and Jeremy Hyam were instructed at an earlier stage of the proceedings, on behalf of one water/sewerage undertaker.

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