The Environmental Information Regulations 2004 provide for important rights of access to environmental information that is held by or on behalf of public authorities in the United Kingdom (except Scottish public authorities, to which the Environmental Information (Scotland) Regulations 2004) apply. The Regulations were introduced to give effect to a European Directive on access to environmental information, the Directive and Regulations are ultimately based upon the Aarhus Convention on access to environmental information.
The Environmental Information Regulations 2004 have a much wider application than the Freedom of Information Act 2000 does by virtue of the much wider definition of public authority in the Convention (and as a consequence the Directive and Regulations). The leading case on the question as to exactly who is a public authority is Fish Legal & Emily Shirley v the Information Commissioner and Others which is a decision of the Grand Chamber of the Court of Justice of the European Union. This decision has been given domestic application by the Upper Tribunal in a number of appeals, including the Fish Legal case (the Upper Tribunal having been the source of the reference to the court of Justice of the European Union).
In light of this decision I considered that the utilities companies were likely to be caught by the definition of a public authority. I therefore wrote to Northern Gas Networks Limited in December 2015 requesting information from them in respect of gas escapes. Northern Gas Networks Limited is one of a number of gas distribution companies in the United Kingdom responsible for the gas distribution network in a given geographical area; in the case of Northern Gas Networks, they have responsible for the gas distribution network in the North of England. The gas distribution companies are responsible for the distribution (but not the supply of) gas to domestic and commercial premises. They are responsible for the physical network (i.e. the pipes, gas meters etc).
The Gas Act 1986 gives the gas distribution companies a range of powers that are not ordinarily available to private individuals or businesses. For example, the gas distribution companies have the power (subject to authority from the Secretary of State) to compulsorily purchase land that is required by them to maintain the gas distribution network. The Gas Act also gives the gas distribution companies the power to enter land or premises to inspect gas equipment and fittings on a safety basis and for the purposes of performing other duties. They also have the power to lay pipes within streets, including the power to break up streets.
The “Special Powers” test derives from the Fish Legal cases; they are rights which are not normally available to private bodies or individuals – even where they are qualified (for example, by needing a warrant from the court or the authority of the Secretary of State). Clearly, the powers available to gas distribution companies under the Gas Act are just that: they are powers not normally available to private individuals.
Northern Gas Networks did not respond to the request for information, nor to representations made pursuant to Regulation 11 of the Environmental Information Regulations 2004. I wrote to the Information Commissioner to make an application for a decision pursuant to section 50 of the Freedom of Information Act 2000 (which applies to the Environmental Information Regulations by virtue of Regulation 18).
Northern Gas Networks maintained that it was not a public authority for the purposes of the Environmental Information Regulations 2004; however, the Commissioner considered the matter in light of Fish Legal and decided that Northern Gas Networks is a public authority for the purposes of the Environmental Information Regulations 2004. The Commissioner’s decision can be read here.
It follows from this decision that the other gas distribution companies in the United Kingdom are also public authorities for the purposes of the Environmental Information Regulations 2004. Those companies are: SGN (Scotland & South East England); National Grid (Midlands and North West England) and Wales & West Utilities (Wales and South West England).
The electricity distribution system is split-up in a similar fashion with electricity distribution companies responsible for the distribution (but not the supply of) electricity around the network in the United Kingdom. Those companies have similar powers to the gas distribution companies in respect of the distribution of electricity and it is therefore likely that they would also be public authorities for the purposes of the Environmental Information Regulations 2004.
The electricity distribution companies are: SSE Power Distribution (North of Scotland and Southern England); SP Energy Networks (Central Scotland, Southern Scotland, East Midlands, West Midlands, South Wales & South West England); Northern Powergrid (North East England and Yorkshire); Electricity North West (North West England); UK Power Networks (Eastern England, London, South East England) and Northern Ireland Electricity (Northern Ireland).
Although, as set out at the beginning of this post, Scotland has separate access to environmental information regulations it is my view that the UK Regulations would apply to both the gas and electricity distribution companies in Scotland. This is because the distribution of gas and electricity is a matter reserved to Westminster and continues to be the responsibility of the Secretary of State for Energy and Climate Change and regulation is the responsibility of OFGEM.
The Decision Notice was only issued last week and it therefore follows that Northern Gas Networks could yet appeal the Commissioner’s decision to the First-Tier Tribunal (Information Rights).