NI Water only admitted hosepipe ban unlawful after court threat from attorney general

On Friday, the publicly owned water utility published a statement on its website to say that it now accepted its sweeping hosepipe ban – which threatened the public with a criminal record for everything from washing a patio to washing windows – was beyond its legal powers.

On July 11, the News Letter reported in detail on how the ban then in place was contrary to the law in Northern Ireland and instead appeared – whether through a gaffe or a deliberate decision – to be lifted from the law in GB, which was never extended to Northern Ireland.

NI Water doggedly refused to accept that it was wrong – even though the legislation was utterly clear.

Now it can be revealed that on the day of the News Letter report, the office of Attorney General John Larkin emailed NI Water to give it a legal opinion in line with what this newspaper reported – but it repeatedly refused to accept that, and then, even after it found that position untenable, it dragged its feet about admitting so publicly.

On July 11,the attorney general’s office wrote to NI Water to say: “The Attorney advises that the current hosepipe ban should be withdrawn by NI Water and should any new hosepipe ban be required that the proper procedure of advance notice in two or more newspapers must be followed in advance of any new hosepipe ban being introduced by NI Water.”

Five days later, the attorney general’s office contacted NI Water again to say: “While the Attorney recognises that it is highly desirable that members of the public should refrain from these activities during times of restricted water supply, this desirability cannot justify a public authority prohibiting, under pain of prosecution, activities which the legislature has not seen fit to include within the scope of the Article.”

The email added that Mr Larkin advised NI Water “to urgently revise your hosepipe ban notice in order to reflect the legislation currently in force in this jurisdiction”.

Neither of those warnings elicited any substantive response from NI Water so on July 17 Mr Larkin alerted the company to his intention to take the matter before the High Court.

In a six-page proposed claim for judicial review served on NI Water that day, Mr Larkin set out a proposal to challenge the hosepipe ban on the two grounds raised by the News Letter – the fact that the sweeping ban went beyond NI Water’s legal powers and the failure to advertise the ban in two newspapers before it came into force, as required by law.

It said that “the decision of the proposed respondent dated June 29 2018 to publish notice of a temporary hosepipe ban, and in particular in the form that it did, was unlawful, ultra vires and of no force or effect” and concluded: “In view of the unlawful exposure of the public in Northern Ireland to the threat of criminal proceedings, a response within 48 hours is required.”

Having failed to respond up to that point, the following day, NI Water suddenly did reply.

In a five-page letter, a senior lawyer at NI Water did not accept that it had acted unlawfully and advised Mr Larkin that they planned to remove the hosepipe ban – not because of his intervention, but because “water supply/demand conditions have improved”.

The lawyer said that NI Water had “invoked its Major Incident Plan” and then escalated the situation to a “category 1 major incident” which involved “the Major Emergency Group” and a “silver command”.

The lawyer argued that NI Water had taken “a purposive approach to interpretation” of the law and refused to accept that such an interpretation was wrong, describing the scope of the ban as “both lawful and proportionate”.

Mr Larkin’s office replied immediately, expressing concern at NI Water’s stance and in particular at its lack of admission that it had gone beyond its legal powers and therefore even if the current ban was revoked, the situation may be repeated at a future point.

It added: “With regard to the extent of the hosepipe ban, the Attorney does not accept that Northern Ireland Water’s wide interpretation of ‘private gardens’ is appropriate in view of the clear and unambiguous wording of Article 116 (1).”

The letter made clear that if NI Water did not acknowledge that it was in the wrong and that the situation would not be repeated, then judicial review proceedings would begin.

Five days later, NI Water’s top lawyer, Mark Ellesmere, replied, urging Mr Larkin not to take the matter to court and said it had taken external legal advice which essentially backed up what Mr Larkin was saying.

NI Water said that it was advised by a senior barrister that the way it informed the public of the ban “is not likely to be considered by the court to comply with [the law]” and admitted that several of the activities it had banned were beyond its powers.

It added that it was now clear that the law in Northern Ireland is “clearly deficient and outdated” and had been unable to respond to a “real and immediate risk” to the water supply.

Mr Larkin’s office replied to say that “whatever the state of the water supply, NIW had no power to menace the Northern Ireland public, as it did through its ban, with the possibility of criminal prosecution for activities which NIW could not proscribe.

“Such an unlawful prohibition (and its repeated public defence by NIW) may well have the effect of damaging the trust of the general public in public authorities ...”

In a subsequent letter, NI Water admitted that multiple parts of its ban were unlawful. Mr Larkin’s office responded to express concern that as “the public was misled by NI Water... it would be proper for the erroneous impression, underpinned by the threat of criminal sanction, to be publicly corrected”.

NI Water failed to respond, leading to Mr Larkin’s office writing again on Friday to say that if NI Water was unprepared to publicly admit that it had been wrong then he would “proceed to consider how that erroneous impression can now be publicly corrected”. That afternoon NI Water published a statement on its website – but did not inform the media about it, as is customary – to admit it had been wrong.

Yesterday Mr Larkin described the statement as “inadequate”.