Is the industry taking liberties?

In the first installment of a two-part article, Professor Robert Jackson and Elizabeth Ord discuss the implications for water companies of the recently introduced Human Rights Act

The dependence of life on water is complete; it is the major constituent of plant and animal cells and fresh water is regarded as a birth right around the globe.

But do we have a right to potable water and if so, to what standard does that right extend? The Human Rights Act 1998 came into force in England on October 2, 2000, thereby encompassing European Convention rights into our domestic legal system. Unlike the international Aarhus Convention, neither the Human Rights Act nor the European Convention of Human Rights provides any environmental rights as such, although several Articles and sections may be used legally in environmental actions. Indeed, cases have already gone before the Strasbourg court claiming environmental human rights.

The concept of human rights is new to the English courts and there is much speculation over how it will affect them in practice. Some judges are concerned about the provisions being applied too readily. Recently Lord Woolf, the architect of the revolutionary Civil Procedure Rules 1998 which overhauled legal practice in the civil courts, warned lawyers against taking courts down “blind alleys” in raising unnecessary human rights points. He appears to believe our Civil Procedure Rules are enough to satisfy the European Convention on Human Rights as they were drawn up with the latter in mind.

Some environmentalists and non governmental organisations (NGOs) may beg to differ. When it comes to securing the right to clean drinking water and pollution free rivers, they will be asking the courts to take a leaf from Strasbourg’s book and grasp the human rights nettle.

Rights and Wrongs

There are several Articles embodied in the Human Rights Act which are worthy of appraisal. The most helpful is likely to be Article 8(1): “Everyone has the right to respect for his private and family life, his home and his correspondence.”

In the Strasbourg case of Lopez Ostra v Spain (1994) 20 EHRR, its first successful substantive environmental claim, the proprietors of a waste treatment plant were held liable for disrupting the living conditions of local residents due to polluting emissions. This was despite the fact that no adverse health effects were shown. The court held: “Naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.” The residents were awarded compensation of £4M pesetas.

The Environment Agency’s (EA) consultation document for water resources strategies issued in October 1999 entitled Sustainable Water Resources for the Future: Values and Challenges highlights options for change and the need to understand the dynamics of water within the environment in order to manage an integrated and sustainable environment. Addressing the social acceptance of waste water re-use, the associated technology and its economic benefits to users are, therefore, major examples of this changing environmental agenda. Moreover, the Government’s sustainable development strategy, Better Quality of Life, is underpinned by about 150 indicators which focus on scientific issues and provide a framework for action.

Could Article 8(1) be used to argue for a supply of potable water which complies with current quality standards? In the UK and other EU states it is currently possible for the authorities to issue certain derogations from these standards to water companies because of exceptional meteorological conditions or because of the nature and structure of the ground. Approximately 950 supply zones in England and Wales have been given such exemptions since the privatisation of the water industry. Could this be in breach of Article 8(1)? The answer will probably depend on the degree of derogation and the circumstances under which it was allowed. Enforcement of rights involves a balancing exercise between competing claims and no right is absolute.

Another interesting issue on quality rights could arise with new non-statutory water suppliers following the Competition Act. New entrants distribute their product through common carriage and statutory water companies have no choice but to agree access to their distribution mains. The water undertakers have to police their own mains to ensure that competitors do not pollute the supply. Legal responsibility still rests with the water undertakers regardless of who pollutes. If a new entrant pollutes the supply, then the water company, which owns the mains, can be prosecuted by the Drinking Water Inspectorate (DWI).

Self Defence

Some may say that justice demands that the water undertakers have some recourse against the polluter. Their commercial contract might provide financial recompense but cannot be used in defence of a criminal prosecution. Could the Human Rights Act help?

Article 7 says there should be no punishment without law. However, the law does provide for punishment against the water undertaker in this situation, even if it is considered unjust. Therefore, it is unlikely that this Article would be of any use. Could the water undertakers invoke Article 1 of the 1st Protocol, which lays down a right to protection of property? If the new supplier contaminates the undertaker’s distribution system, is the undertaker being deprived of his possessions? Possibly so, although the Article is unlikely to add anything more than what a prudent undertaker would already have in its contract. The Article might be used as a last resort.

For domestic users there is now an increasing recognition that the reduction of water consumption is a necessary component of good environmental practice. Thus, while the case for investing in appropriate systems may be limited, it is becoming recognised that new construction should not simply consider water as a utility but the use of water as part of the environmental assessment. Furthermore, it may now be questionable as to whether the cost of supplying all our water in the UK to drinking standards is in itself sustainable and the dilemma is convincing the public to change their attitude to water use while wrestling with drought orders on the one hand and flood alerts on the other. Indeed, the widespread private consumption of bottled drinking water has established an acceptable pattern of ‘a price for drinking water’ in public perception.

Drinking water standards are set to become even tighter when the UK implements the new European drinking water directive 98/83/EC by December 25, 2000. The maximum limits of substances allowed, to meet the definition of “wholesome” water in s68 Water Industry Act 1991, will alter. For example, the standard for the lead limit will improve from 50µg/l to 10µg/l.

Many water companies may have to invest substantially in treatment works and distribution systems in order to comply. Water companies will also have a stricter duty to inform the public when standards are breached. Derogations must not give rise to dangers to public health, and may only be allowed if an alternative supply cannot reasonably be provided. The public must be informed about any derogation. Draft regulations provide this should be done by means of advertisements in local newspapers.

In the UK, there is an urgent need to conserve water and the government, in its consultation document Taking Water Responsibly, looks at planning to manage water resources in a more sustainable way. Hence, water companies will have to think carefully about how water might be preserved. The ability to integrate technologies and deliver whole sustainable solutions are key features to future success of sustainable communities. Consequently, addressing the social acceptance of water re-use, the associated technology and its economic benefits to users is, therefore, one major example of this changing environmental agenda. Therefore, there is a growing need to consider the integration of wastewater recycling into future water demand strategies.

Quality control

Water UK has expressed concern that the Competition Act could cause confusion over responsibility for water quality and possibly for environmental damage via over-abstraction. Abstraction of water can be an emotive issue when resources are low. In the south of England, where water shortages are prevalent, some water companies have turned to new methods of sustainable supply, such as artificially recharging chalk aquifers and treating sewage effluent for re-use as a potable supply.

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