Sewage Disposal in Rivers and Coastal Waters - Motion to Take Note

Part of the debate – in the House of Lords at 12:17 pm on 7th July 2022.

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Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 12:17 pm, 7th July 2022

My Lords, it is a pleasure to follow the noble Lord, Lord Campbell-Savours. Amid this discussion of an unpleasant subject, it is pleasurable to have in my mind the image of leaping salmon, which slightly cheers me up.

I do not have the expertise of others such as my noble friend Lord Oates, whom I thank for this debate, but I want to speak about the Thames Tideway tunnel and my modest role in it. I have had just two things named after me in my political career. One is Sarah s law, a statutory instrument in 2008 whereby I was able to leave this House for a while—to be disqualified in fact, like a traitor or a bankrupt, since that was the only route before the facility of resignation was introduced—to allow me to re-stand for the European Parliament in 2009, but that is history.

The other is “Sarah’s tunnel”, which is what is now the Thames Tideway tunnel, which as your Lordships will all know is a major new 25-kilometre sewer being built along the north bank of the Thames—I think the original target date was 2020, which of course has slipped. Its purpose is to capture raw sewage instead of overflows, as now, pouring into the river from some 36 so-called CSOs, or combined sewage overflows, on the Thames and the River Lea.

I cannot remember whether the term “Sarah’s tunnel” was coined by a journalist or Thames Water. It must be said that Thames Water found that to be a quite convenient term when it wanted to wheel me out as a shield when local residents were up in arms about the disruption of construction works—including, I recall, in the Southwark constituency of my then right honourable friend Simon Hughes MP. They pointed at me and said, “She’s the one who’s got to answer for this; not us”, which was a bit much.

I take a large degree of pride in my role in ensuring that the Thames, at least, will finally be cleared up. A large discharge in 2004 killed a lot of fish, which floated on the surface of the Thames and rowers had to plough through them, which they naturally found very distasteful. A petition was then collected and, as a Member of the European Parliament for London, I had the privilege of presenting this to the European Parliament Committee on Petitions. The usefulness of this mechanism is that the European Commission—the enforcer of EU law—had to respond to such a petition. Suffice it to say that that helped lead to the so-called infringement procedure, which culminated, though only many years later in 2012, in a judgment by the European Court of Justice which found the UK in breach of EU law on sewage treatment. I will come back to this court judgment.

That EU law is the snappily named urban wastewater treatment directive. In fact, this was passed more than 30 years ago, in 1991, and came into force, after the usual grace period for member states to comply, in 1998 for larger towns and cities and in 2005 for everywhere. So for nearly 20 years, it has been illegal to discharge raw sewage anywhere, including in the UK—as far as I know, this is either still retained EU law, subject to correction, or is being spilled over to the Environment Act. This directive marked a shift from legislation aimed at end-use standards—testing pollution levels in a river, for instance—to a stricter law regulating water quality at the source, whether domestic or industrial.

I admit that my knowledge of this subject acquired as a constituency MEP has not kept up with the times. My specialisation has always been in justice, home affairs, human rights, and equalities, so I am not knowledgeable about environmental and pollution matters, and my knowledge runs out in about 2012, the date of the judgment by the ECJ. I know that the European Commission has run a consultation on a review, and I think it will respond to the consultation later this year. However, both then and now, domestic regulators have been asleep on the job. I saw recently that Ofwat described the current situation of polluted rivers and seas as “shocking” a few weeks ago. Where on earth has it been for decades? I also know that the Environment Agency funding has fallen 70% in real terms in a decade, so enforcement is much undermined. In that case, the only real enforcement has been by the European Commission, which I will quote shortly.

As we know, the combined system of rainwater and sewage was state of the art—beginning with Bazalgette in the mid-19th century. Of course, this means that if both rainwater and sewage flows increase, so does the combined flow into the sewers. However, we need to keep up with that; we cannot have a static approach and say, “Well, it was okay 50 years ago, so we won’t provide any more investment or make any more changes.”

I wanted to speak today mainly to warn against the term “storm overflows”. The Government and water companies love us to use this expression, because it suggests that discharges are somehow exceptional—only when there is a kind of storm which produces the type of flooding that we have seen in the last few years in Shropshire, Worcestershire, Yorkshire and Lancashire. They want us to have that image in our minds, so that we say, “Oh well, how can they be expected to plan and invest for that sort of exceptional event?” I was tipped off about this by a staff member—who shall for ever remain anonymous—in one of the regulators.

That brings me to the 2012 judgment of the European Court of Justice. I was amused to note that the representation of the United Kingdom Government was led by one “D Anderson QC”—and I hope that he does not mind, in his absence, if I say that I assume that this QC was the noble Lord, Lord Anderson of Ipswich. Of course, I am not reproaching him for acting for the UK Government; he would have been acting on the cab rank principle, in the same way that the noble Lord, Lord Pannick, is acting for the Government on the Rwanda scheme.

This case was finally brought by the European Commission after years of argy-bargy with the UK Government. The Commission said that, under the directive, member states

“are obliged to ensure that a collecting system is designed and built so as to collect all the urban waste water generated” by the town it serves. It continues:

“The capacity of the collecting system must therefore be able to take into account natural climatic conditions (dry weather, wet weather, even stormy weather) as well as seasonal variations … The directive must be interpreted as providing for an absolute obligation to avoid spills from storm water overflows save for exceptional circumstances.”

That is what water companies tell us all the time: “Oh, it’s exceptional.” Clearly, however, with climate change what was once exceptional is now routine. In this case, the Commission pointed out that

“the more an overflow spills, particularly during periods when there is only moderate rainfall, the more likely it is that the overflow’s operation is not in compliance” with the directive under EU law. This is what that staff member in the regulator said to me: “Don’t be misled by the term ‘storm overflows’.” This is happening once a week into the Thames, purely when there is “moderate rainfall”. The staff member told me not to be fobbed off, and I suggest to noble colleagues that we continue not to be fobbed off.

The Commission continued by saying that the directive required

“waste water treatment plants … designed, constructed, operated and maintained to ensure sufficient performance under all normal local climatic conditions.”

That is the warning that I want to repeat today. The Commission went on to say that

“failure to treat urban waste water cannot be accepted under usual climatic and seasonal conditions, as otherwise Directive 91/271 would be rendered meaningless.”

This is the point: water companies come along and say, “Oh, it is all exceptional, so we cannot possibly be expected to invest in this.” But they are failing to invest for normal climatic conditions.

The court found against the UK, because it said that it is not exceptional that these discharges are happening. It also went on to say

“in accordance with settled case-law, a Member State may not plead practical or administrative difficulties in order to justify non-compliance … The same holds true of financial difficulties”.

So the Government and the water companies cannot say that there is a disproportionate cost; they have undertaken to stop these discharges and so they must. Indeed, in its judgment, the court found that there were

“60 waste water discharges from”— it did not use the term “so-called” here, but I will add it—

“storm water overflows in London per year, even in periods of moderate rainfall”.

That is the situation we are facing.

Against the background of that 2012 judgment, I admit that I do not understand the system of permits for the discharge of raw, untreated sewage—this is my ignorance. Why are water companies being given permission to make these discharges? I do not see how this is legal under the directive I have mentioned, since this normalises the routine absence of treatment in unexceptional weather conditions.

I end by thanking my noble friend Lord Oates again for this debate, which has allowed me to go down memory lane. If I have achieved one thing, I hope it has been to put noble Lords on guard about the phrase “storm overflows”.