Law Report: Wholesome water action lawful: Regina v Secretary of State for the Environment, Ex parte Friends of the Earth and another - Queen's Bench Division (Mr Justice Schiemann), 29 March 1994

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The Secretary of State's acceptance of undertakings from water authorities to secure or facilitate compliance with their duty to supply wholesome water for human consumption is a lawful way of fulfilling his duty to remedy the breach of the United Kingdom's obligation to supply wholesome water for human consumption. The Secretary of State was not thereby fettering his own ability to take enforcement action against the water authorities.

Mr Justice Schiemann dismissed an application by Friends of the Earth and Andrew Lees for judicial review of the Secretary of State's decisions under the Water Industry Act 1991 to accept undertakings from Thames Water Utilities Ltd and Anglian Water Services Ltd to take steps which appeared to him appropriate for them to take for the purposes of securing or facilitating compliance with their duty under section 68 to supply wholesome water and his decisions not make any enforcement orders against Thames and Anglian to secure such compliance.

Since 1985, the United Kingdom has been in breach of its primary obligation under European law to ensure that water intended for human consumption met standards of wholesomeness set by the Community. The issue was whether the Secretary of State had, by accepting the undertakings from Thames and Anglian, used the UK's legislative mechanism for rectifying the breach in a manner consonant with his obligation under English law.

Michael Beloff QC, Jacques Algazy and Helen Mountfield (Bindman & Partners) for the applicants; Stephen Richards and Christopher Katkowski (Treasury Solicitor) for the Secretary of State.

MR JUSTICE SCHIEMANN said that the question for the court was whether the applicants had shown that the acceptance by the Secretary of State of the undertakings was an unlawful way of attampting to fulfill his duty to remedy the breach of the UK's primary obligation.

The Secretary of State accepted the undertakings intending to secure that ultimately the UK would comply with the EC standards.

The secondary obligation on the UK was one to rectify the breach as soon as possible and not merely as soon as practicable.

However, it might be that it was not possible to achieve a result earlier than was practicable.

In the present case there were considerable complexities in bringing all our water up to standard. The evidence did not show that the Secretary of State had, in accepting the undertakings, adopted too leisurely an approach. The submission that the Secretary of State, by accepting the undertakings, was fettering his own ability to take further enforcement action so long as the applicants complied with the steps in the undertaking was rejected.

The purpose of the undertakings was to arrive at a situation in which there were no longer contraventions. The Act did not provide that acceptance by the Secretary of State of an undertaking prevented the Secretary of State from taking further enforcement action. On the contrary, the words in section 19 envisaged a continuing monitoring duty on the Secretary of State.

Target dates had regularly been beaten and tighter undertakings had been substituted for looser undertakings. All that indicated continued monitoring and a willingness and ability on the part of the Secretary of State to strive for conformity with standards.

The undertakers were manifestly in breach of their obligation to supply wholesome water and there was no legal problem in asking for an injunction to restrain them from further supplying water which was not up to standard.

The problem was that meanwhile people must drink. The undertakings were designed to enable one to arrive at a situation in which all water was to conform to standard.