Emily Shirley GIA 980 2011
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 19 February 2015 |
| Neutral Citation | 2015 UKUT 52 AAC |
| Subject Matter | Information rights |
| Respondent | IC, United Utilities, Yorkshire Water, SoS for Enviroment Food and Rural Affairs |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 980 2011 |
| Appellant | Emily Shirley |
The Upper Tribunal
(Administrative Appeals Chamber)
Upper Tribunal Case No: GIA/0979/2011
Fish Legal
v
Information Commissioner
United Utilities plc
Yorkshire Water Services Ltd
and
the Secretary of State for the Environment, Food and Rural Affairs
Upper Tribunal Case No: GIA/0980/2011
Emily Shirley
v
Information Commissioner
Southern Water Services Ltd
and
the Secretary of State for the Environment, Food and Rural Affairs
[2015] UKUT 0052 (AAC)
Decisions on Appeals against Decisions of a Tribunal
Chamber President: Charles J
Upper Tribunal Judges: Edward Jacobs and Paula Gray
The Upper Tribunal
(Administrative Appeals Chamber)
Fish Legal
and
Emily Shirley
v
Information Commissioner,
United Utilities Water plc,
Yorkshire Water Services Ltd,
Southern Water Services Ltd
and
the Secretary of State for the Environment, Food and Rural Affairs
[2015] UKUT 0052 (AAC)
TABLE OF CONTENTS
In electronic copies of this decision, CTRL-left click on any entry in this Table will jump to the relevant section.
Decisions of the Upper Tribunal (Administrative Appeals Chamber)
Reasons for Decision
I PRELIMINARY MATTERS
A. Abbreviations
B. The issues
C. The proceedings and their history
II THE JURISDICTION ISSUE
A. Introduction
B. The legislation
C. The arguments
D. The First-tier Tribunal’s jurisdiction
E. The Commissioner’s jurisdiction
The argument
Why we reject the Secretary of State’s argument
Sugar
Conclusion
III THE PUBLIC AUTHORITY ISSUE
A. The protection of the environment in the EU
B. The legal structure of the water industry
Background
WIA
The companies’ corporate structure and governance
Functions of OFWAT
Duties of Water and Sewage Undertakers
Powers of Water and Sewage Undertakers
Other Sources of Information
The Water Act 2014
C. The definition of public authority
D. The proper role of the Upper Tribunal
E. The application of the CJEU’s tests
F. Special Powers
The CJEU judgment
Powers
Hunting the Snark
The rules of private law
Susceptible to judicial review
Foster
Conclusion
G. Control
The CJEU judgment
Authorities
Corporate control
Autonomy and influence
The case against the companies
Conclusion
IV OVERALL CONCLUSIONS
APPENDIX A
Relevant Provisions of FOIA
APPENDIX B
Parts IV and V of FOIA as Modified by EIR
APPENDIX C
Relevant Paragraphs in the CJEU Judgment
Decisions of the Upper Tribunal
(Administrative Appeals Chamber)
Fish Legal v Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd and the Secretary of State for the Environment, Food and Rural Affairs
As the decision of the First-tier Tribunal (made on 14 February 2011 under reference EA/2010/0069) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: United Utilities plc and Yorkshire Water Services Ltd are public authorities and their responses to Fish Legal’s requests were late. No further steps are required of the companies.
Emily Shirley v Information Commissioner, Southern Water Services Ltd and the Secretary of State for the Environment, Food and Rural Affairs
As the decision of the First-tier Tribunal (made on 14 February 2011 under reference EA/2010/0076) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: Southern Water Services Ltd is a public authority and its response to Mrs Shirley’s request was late. No further steps are required of the company.
Reasons for Decision
- These are our reasons for allowing these two appeals. We have given our short, formal reasons in the related judicial review proceedings under references JR/5347/2014 (the Secretary of State’s application) and JR/5348/2014 (Fish Legal’s application). Mrs Shirley reserved the right to apply for permission to being judicial review proceedings, but did not do so
- We use the following abbreviations
Aarhus: Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters done at Aarhus on 25 June 1998
CJEU: Court of Justice of the European Union and its predecessor the European Court of Justice
Commissioner Information Commissioner
Companies: United Utilities plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, all of which are water and sewerage undertakers
EA: Environment Agency
EID: Directive 2003/4/EC on public access to environmental information
EIR: Environmental Information Regulations 2004 (SI No 3391)
Foster: the decision of the House of Lords in Foster v British Gas plc [1991] 2 AC 306, following the decision in CJEU Case C-188/89 [1991] 1 QB 405
FOIA: Freedom of Information Act 2000
Guide: Aarhus Convention Implementation Guide
Licence: Instrument of Appointment as a water and/or sewage undertaker
OFWAT: Water Services Regulation Authority
Smartsource: the decision of the Upper Tribunal in Smartsource Drainage and Water Reports Ltd v the Information Commissioner and a Group of 19 Water Companies [2010] UKUT 415 (AAC)
Sugar: the decision of the House of Lords in British Broadcasting Corporation v Sugar [2009] 1 WLR 430, also reported in the Court of Appeal at [2008] 1 WLR 2289 and in the High Court at [2007] 1 WLR 2583
TFEU: Treaty on the Functioning of the European Union
B. The issues- These appeals raise two issues
- One issue is a matter of substance. It is whether the respondent companies are public authorities for the purposes of EIR. We call this the public authority issue.
- The other issue is a matter of jurisdiction. It is whether the public authority issue is one that can be decided by the First-tier Tribunal or whether it has to be the subject of a judicial review. We call this the jurisdiction issue. It was raised late in the proceedings by the Secretary of State, but logically it has to be dealt with first.
- To anticipate, we have decided that the public authority issue is within the jurisdiction of the First-tier Tribunal and that the companies are public authorities for the purposes of EIR by virtue of their special powers but not by virtue of being under State control.
- This is complicated
- Fish Legal is the legal arm of the Angling Trust. On 12 August 2009, it asked United Utilities Water plc and Yorkshire Water Services Ltd for information relating to discharges, clean-up operations, and emergency overflow. Mrs Shirley is a private individual. On 19 August 2009, she asked Southern Water Services Ltd for information relating to sewerage capacity for a planning proposal in her village. All three companies denied that they were...
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