The First‑tier Tribunal (General Regulatory Chamber) has dismissed an appeal by SA Certification Ltd, concluding that the organic control body is a “public authority” for the purposes of the Environmental Information Regulations 2004 (EIR). The ruling means the organisation must respond directly to environmental information requests relating to its inspection of organic salmon farms.
The decision, SA Certification Ltd v Information Commissioner & WildFish Conservation [2026] UKFTT 104 (GRC) follows a high‑profile campaign by WildFish Conservation, which has raised concerns about the robustness of organic certification in the aquaculture sector.
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What is the Fish Legal test? The Fish Legal rulings (CJEU, 2013; UKUT, 2015) define when a private or hybrid body counts as a 'public authority' under the Environmental Information Regulations (EIR). The decisions are now the leading authority for regulation 2(2)(c). The two‑stage test A body is a public authority if: 1. "It is entrusted by law with public administrative functions", and Both limbs must be satisfied. What counts as “special powers”? The Upper Tribunal stressed that “special powers”:
The key question is whether the body has "a practical advantage" over private actors because of powers conferred by legislation. Examples include:
The Fish Legal test is now routinely applied to determine whether private organisations performing delegated regulatory or public‑interest functions must respond to EIR requests. It was central to the Tribunal’s conclusion that SA Certification is a public authority. |
WildFish submitted a request in May 2024 seeking inspection reports and details of non‑compliance findings at Scottish salmon farms certified as organic. SA Certification forwarded the request to Defra, arguing that it was not itself a public authority and that Defra held the relevant information.
Defra initially disclosed some material but later claimed it did not hold the information at the time of the request. WildFish complained to the Information Commissioner, who issued a decision notice in February 2025 finding that SA Certification was a public authority under regulation 2(2)(c) EIR because it had been entrusted with public administrative functions and vested with “special powers”.
SA Certification appealed, arguing that its relationship with operators was governed purely by private contract and that it lacked any powers of compulsion.
The Tribunal rejected the appeal, holding that SA Certification’s functions as an approved organic control body derive from retained EU legislation and Defra’s approval framework - not merely from private contractual arrangements.
Key to the Tribunal’s reasoning was the nature of the powers that control bodies must possess under Regulation 834/2007 and associated legislation. These include:
- the ability to access operators’ premises, documents and personnel, including unannounced inspections;
- the ability to suspend or revoke certification, with direct consequences for operators’ ability to market products as organic;
- obligations to report non‑compliance to Defra and share information with other authorities; and
- delegated functions relating to conversion periods and control measures.
Although these powers are implemented contractually, the Tribunal found that they arise from statutory requirements and confer “practical advantages” that go beyond the ordinary rules of private law.
Citing Fish Legal (see box right), the panel emphasised that “special powers” need not involve compulsion in the public‑law sense. The test is whether the body has abilities conferred by law that give it a practical advantage relative to private actors. The Tribunal held that SA Certification clearly met this threshold.
The Tribunal dismissed SA Certification’s contention that:
- its powers would exist even if the legislation were repealed;
- the absence of direct enforcement powers meant it lacked “special powers”;
- only Defra should be considered the relevant public authority; and
- a single special power would be insufficient to meet the statutory test.
The panel also rejected the suggestion that the Commissioner had misunderstood the legislative scheme, noting that the Organic Products Regulations 2009 and retained EU regulations create a tightly structured control system in which control bodies perform delegated public functions.
The appeal was dismissed, and SA Certification must now respond to WildFish’s request under the EIR. The ruling confirms that private organisations performing delegated regulatory functions may fall within the EIR even where their day‑to‑day interactions with operators are governed by contract.
The decision also reinforces the broad approach taken in Fish Legal to the concept of “special powers” and may have wider relevance for other delegated or hybrid regulatory schemes in the UK.
