A few weeks ago, the March for Clean Water swept through London, with thousands demanding action on water pollution. The scale of the crisis is undeniable; only 14% of English rivers are ranked as having “good” or better ecological status, and over 10% of our freshwater and wetland species are threatened with extinction.[1]
The Labour Party was elected on a manifesto promising action. It moved swiftly to introduce the Water (Special Measures) Bill (“the Bill”) in September 2024, which it described as “landmark legislation to crack down on bosses for polluting water”.
The Bill
The Bill focuses on misconduct by the water companies, and aims to empower the regulators to stamp it out – for example, by giving Ofwat (the sector’s economic regulator) powers to block executive bonuses, introduce a new “fit and proper person” test for senior water company staff, and impose tougher penalties (including imprisonment) on individuals who obstruct investigations. While the Bill completes its journey through Parliament, Ofwat has just concluded a consultation on its proposed new powers.
The Bill is only one part of the government’s plan to “fundamentally transform” the UK’s water system, pursuant to which it launched an independent commission on water sector regulation in October. But the Bill will lay the foundations for any future regulatory reform – and some have argued that it lacks ambition.
Baroness Boycott, for example, tabled an amendment to the Bill that would have imposed stronger obligations on the water companies to proactively publish data about sewage spills. The government rejected it, saying that the Bill already imposed the necessary duties. That was denied by the amendment’s supporters, with Baroness Willis saying “we have looked, and we cannot find these pre-existing provisions”.
Campaigner’s concerns
The back and forth over the amendment is a good illustration of one of the key problems underlying the crisis – namely, a lack of clarity about what the relevant obligations are, and about whose job it is (within a complex regulatory landscape) to enforce them. The Bill’s proposed reforms could be seen as an attempt to continue outsourcing blame for the crisis to the regulators, which have been hindered by a lack of resources, confusion about their respective roles, and inadequate political cover for tough action.
The campaign group Wildfish has argued that no new laws are actually needed to bring the water companies into line. All that’s lacking, they say, is the “political courage” to push the regulators (particularly Ofwat and the Environment Agency) into taking stronger steps to enforce the laws as they stand.
Water companies are already subject to legislation requiring them to disclose pollution data, for example – principally the Environmental Information Regulations 2004 (“EIR”) – but frequently seek to wriggle free of the obligations. United Utilities was recently issued with a practice recommendation by the Information Commissioner’s Office (“ICO”), which found that it had repeatedly failed to categorise information as “environmental” in order to avoid disclosing it under the EIR, and that it needed to “review its culture around proactive disclosure”.[2] It is not a lone offender.
The role of strategic legal challenges
The new government should expect scrutiny of its evolving strategy. Litigation has already proved an effective tool for increasing executive ambition in relation to climate action (including in the water context). The previous administration’s Storm Overflows Discharge Reduction Plan, for example, was subject to a legal challenge supported by Good Law Project. While unsuccessful, it pressured the government into a substantial concession outside of court, when it agreed to bring coastal waters and estuaries – which had previously been excluded – into the plan’s scope.[3]
The regulators’ interpretation of their new powers will also be open to interrogation. In 2023, Pickering Fishery Association successfully argued that the Environment Agency’s river basin management plan (approved by DEFRA) – which the judge described as having a “considerable element of smoke and mirrors” – was based on a misunderstanding of the EA’s legal duties, and was as such unlawful. That claim is, however, under appeal, and the courts have recently emphasised (in R (River Action) v The Environment Agency, a claim concerning the River Wye) that regulators are to be afforded a significant degree of discretion in their approach to enforcement.[4]
Campaigners are increasingly turning the spotlight directly onto polluters themselves – both the water companies and others (such as the agricultural sector, which is responsible for 16% of serious pollution incidents in England). Challenges are seeking, from various directions, to test and strengthen the guardrails provided by existing law. For example:
- The Supreme Court’s decision in the Manchester Ship Canal litigation – a private claim in which the Environmental Law Foundation intervened – confirmed that parties can bring claims in nuisance and trespass against polluting water companies, even absent negligence or deliberate misconduct.[5] The ruling has potentially opened the floodgates for a new class of claims.
- Jo Bateman has brought a claim for loss of amenity against South West Water, arguing that she was prevented from wild swimming by sewage discharges at Exmouth Beach – a case she says has been strengthened by the Manchester Ship Canal ruling.
- Prof. Carolyn Roberts has recently filed claims in the Competition Appeal Tribunal, arguing that six water companies breached competition law by misleading Ofwat and the Environment Agency about the extent of pollution incidents.
- Groups like Save Windermere are seeking to force the water companies to make appropriate disclosures under the EIR; United Utilities is currently fighting a ruling by the ICO ordering it to disclose data from phosphorus monitors at Lake Windermere (in spite of the practice recommendation referred to above).[6]
- River Action’s 2024 challenge to the Environment Agency’s stewardship of the River Wye failed in court, but its awareness-raising campaign has achieved significant success; it is now supporting a group claim against Avara Foods, whose industrial scale chicken farming is said to be the largest cause of phosphorous pollution in the river.
Next steps
In short, while the Bill has been welcomed, there are significant doubts about whether it goes far enough, and whether the existing regulatory structures are the right vehicle to deliver the necessary change. Campaigners are prepared to fill the gap, by using targeted strategic challenges to force both the government and the polluters to act.
Bates Wells is the UK’s leading charity law firm and the first in the country to certify as a B Corp. We use our values as a compass to guide us in working for impactful clients making a difference to social and environmental issues. We have excellent credentials for taking on and winning strategic litigation. If you or your organisation would like to discuss bringing a challenge, please contact Helen Fry, Matthew Smith or Leticia Jennings.
[3] Sewage pollution plan to include coastal waters in a win for Good Law Project – Good Law Project (2023)
[4] R (River Action) v The Environment Agency [2024] EWHC 1279 (Admin)
[5] Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2024] UKSC 22
[6] United Utilities refuses to hand over data on sewage discharges into Windermere | Pollution | The Guardian