Sewage Disposal in Rivers and Coastal Waters

Baroness Ludford Excerpts

Thursday 7th July 2022 Lords Chamber

[Baroness Ludford (LD)]

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”.

--- Later in debate ---

[Lord Benyon (Con)]

I do not agree with that. I also believe it is good that international sovereign wealth funds want to invest in our regulated utility sector, but it has to be a regulated sector that cracks the whip when it needs to—that is, when those companies do not do what they are required to.

The noble Lord, Lord Oates, asked the House to take note of the impacts of current sewage disposal rates in UK rivers, and further noted the responsibility of water companies to alleviate these impacts. There are two main types of sewage discharges into the water environment by water companies: treated and untreated. Discharges of treated wastewater into our waterways are one of the most significant pressures on the water environment. Treated sewage is the biggest source of phosphorus within the water environment, and excess phosphorus is the most common reason a water body fails to meet good status. Water companies are required to reduce phosphorus loads into the water environment from treated sewage by 50% by 2027. We have recently consulted on a proposal for an Environment Act target to deliver even more progress and deliver an 80% reduction by 2037.

However, it is the untreated discharges that are understandably generating the most public interest. Discharges from storm overflows not only impact the ecology of the receiving water body but can also impact public health where water bodies are used for recreational activities. We have been clear that the current use of overflows is completely unacceptable. They were only ever meant to be an emergency measure but now they are seemingly part of doing business; anecdotally, it seems that only centimetres of rain can trigger them, and that is simply not good enough. We have made it crystal clear to water companies that they must massively reduce sewage discharges from storm overflows as a priority. If we do not see the change we expect, we will not hesitate to take further action.

[Baroness Ludford (LD)]

I am grateful to the Minister and sorry that I missed the first minute of his response. Following the theme of my speech, can I ask that another term be used instead of “storm overflows”? It is the biggest excuse that the water companies rely on. It sounds like, “It’s an act of God; it’s a storm; we couldn’t have anticipated this”. If another term could be found it would help to shift the debate.

[Lord Benyon (Con)]

The noble Baroness may well be right. I agree that there probably needs to be a change. Just behind us, the River Thames is subject to storm overflows that we are hoping to relieve with the Thames Tideway tunnel. With just a few millimetres of rain that one could not call a storm, many other towns, cities and rivers are similarly affected. We have made it clear that the companies must massively reduce sewage discharges from storm overflows as a priority.

My noble friend Lady McIntosh raised a number of good points. I applaud the Slowing The Flow project that she mentioned in the constituency that she used to represent. Importantly, she went on to talk about flooding. There is an easy line that campaigners and politicians use: “We should never build in flood plains”. We are in a flood plain here, in York and in most of our cities. Are we honestly saying that we should never build in those communities? We need to build flood-resistant buildings and to remember the impact that buildings can have on a creaking—sometimes Edwardian or Victorian—sewage system. That is why it is vital to link the pieces together.

We are the first Government to instruct water companies in legislation to massively reduce the use of storm overflows. Earlier this year, the Government published a new set of strategic priorities for the industry’s financial regulator, Ofwat. This set out for the first time the direction from government that water companies must take steps to

“significantly reduce the frequency and volume of sewage discharges from storm overflows”,

and that the regulator should ensure funding should be approved for them to do so. The Government have also committed to undertake a review of the case for implementing Schedule 3 to the Flood and Water Management Act 2010—a case close to my noble friend’s heart. Schedule 3 was designed to set standards for the construction of sustainable drainage systems on new developments, and to make any surface water drainage connections to foul sewers of those developments conditional on the approval of the sustainable drainage systems. This, therefore, can also seek to address the right to connect, which has been of concern to many colleagues here and elsewhere who have mentioned it.

A number of noble Lords mentioned wet wipes. The Storm Overflows Taskforce is considering wet wipes as a contributing factor to overflows and treatment works. The noble Baroness, Lady Bakewell, talked about the importance of stopping wet wipes getting into our sewage system. We have a call for evidence that will explore a possible ban on all wet wipes containing plastic. We continue to encourage water companies and wet wipe manufacturers to raise concerns with the consumers and try to get this situation changed.

The review of sustainable drainage systems in planning policy and other developments towards reducing new burdens on the sewage system from surface water drainage from new developments really matter. My noble friend Lady Altmann mentioned nature-based solutions. These need to be understood. When I first raised them with Ofwat a decade ago, it did not like them because they could not be measured. There has been a sea-change and now nature-based solutions are much more palatable to the regulator and all concerned.

In addition to the actions that the Government are taking, we are setting out clear requirements on water companies to put in place the mechanisms to hold them to account for delivering reductions in the use of storm overflows. Last year, our Environment Act brought in a raft of new duties on water companies, which are now legally required to secure a progressive reduction in the adverse impact of discharges from storm overflows. The Act also included a duty on the Government to produce a statutory plan by September this year to reduce discharges from storm overflows and report to Parliament on progress.

On 31 March, we published a consultation on the storm overflows discharge reduction plan, which will revolutionise how water companies tackle the number of discharges of untreated sewage. Water companies will face strict limits on when they can use storm overflows and must completely eliminate the harm that any sewage discharge causes to the environment. This will be the largest programme to tackle storm sewage discharges in history.

In the consultation, the Government proposed several specific targets for water companies to achieve. One example that addresses some of the points raised is that, by 2035, the environmental impacts of 75% of overflows affecting our most important protected sites will have been eliminated. These are the most important protected sites; they are used for bathing and are valuable ecosystems that are deteriorating and need to be addressed. By 2035, there will be 70% fewer discharges into bathing waters.

The Government will also publish a report setting out the actions that would be needed to eliminate discharges from storm overflows in England. We will be very clear about the costs that this would place on consumers and their bills. Under the Environment Act, water companies are now required to produce comprehensive statutory drainage and sewerage management plans, which will set out how they will manage and develop their drainage and sewerage systems over a minimum 25-year planning horizon. They must include how storm overflows will be addressed.

The right reverend Prelate the Bishop of St Albans asked some pertinent questions. The water industry was privatised in 1989, with the aim of attracting much-needed investment into the sector through private capital markets, rather than by relying on core government funding. Since privatisation, water companies have delivered £160 billion of investment, including £30 billion invested in the environment. This is equivalent to around £5 billion of investment annually. The privatised model continues to attract investment, and, for the period from 2020 to 2025, water companies have invested £51 billion, including over £7 billion of investment in the environment. This will reduce pollution incidents by 30% and deliver improvements to more than 12,000 kilometres of rivers.

The right reverend Prelate talked about the importance of joining up the pollution in our rivers with our farming policy, and he is absolutely right. I was in his diocese recently at the Groundswell event, which showed how farmers can weaponise their soil to protect rivers and the environment. He will be pleased to see the Government’s riparian tree-planting proposals, which will protect river systems by planting more trees on the edge of water.

My noble friend Lord Caithness was absolutely right to raise catchments; we need to think about this landscape to protect water bodies and, of course, aquifers. I am such a geek that I check the Pang Valley Flood Forum’s data whenever it rains to see the impact on my local river. I refer noble Lords to the evidence given to the EFRA Select Committee by the Government’s preferred candidate to take over the Environment Agency, Alan Lovell, who comes from a farming family and understands the impact, both beneficial and damaging, that farming can have on waterways and rivers. We hope that noble Lords will appreciate this appointment and the other work that we are doing with public bodies to make sure that this remains a priority.

The Environment Act also includes a power for the Government to direct water companies in relation to the actions in these drainage and sewerage management plans. The Act includes duties to massively improve the monitoring and transparency of the use of storm overflows. Water companies will be required to publish spill data in near real time and monitor the water quality impacts, upstream and downstream, of all storm overflows. Water companies and the Environment Agency will be required to publish summary data on storm overflow operation on an annual basis.

The Government have been clear to water companies that we will not hesitate to take enforcement action if they are failing to meet their obligations. I say to the noble Lord, Lord Sikka, that the fines get unloaded not on customers but on shareholders. The noble Lord is shaking his head, but this is true: it is a rule that we have imposed.

Since 2015 the EA has brought 49 prosecutions against water companies, securing fines of over £137 million. On 9 July last year, Southern Water was handed a record £90 million fine after pleading guilty to thousands of illegal discharges of sewage which polluted rivers and coastal waters in Kent, Hampshire and Sussex. The fine has been paid solely from the company’s operating profits, rather than added to customer bills.

We are holding the industry to account on a scale never done before. Ofwat and the Environment Agency have launched the largest investigations into all water and wastewater companies in England and Wales in the light of information suggesting that water companies in England may not be complying with their permits, resulting in excess sewage spills into the environment, even in dry periods.

Before coming to this role I was on the board of River Action, which seeks to address the issues around the River Wye, and across many other rivers. These combine the problems of sewage in the rivers and phosphates from farming and make sure that we are holding relevant people to account, so I have some form on this.

In conclusion, the frequency of discharges from storm overflows is wholly unacceptable. I have set out the Government’s ambitious agenda to deliver huge reductions in the use of storm overflows for the first time ever. This includes: reviewing the case for implementing Schedule 3 to the Flood and Water Management Act; a direction from government to Ofwat in the strategic policy statement setting out that water companies must take steps to

“significantly reduce the frequency and volume of sewage discharges from storm overflows”,

and that the regulator should ensure funding be approved for them to do so. Further measures include: statutory drainage and sewerage management plans, with powers of direction; a storm overflows discharge reduction plan, with clear, specific and ambitious targets; and statutory requirements for improved monitoring of sewage discharges.

It is time for water companies to step up and deliver on their promises. We have all set out our expectations that they must do better, as have the public. The Government recognise that healthy and well-managed waters are a cornerstone of our economy and our well-being. We are committed to collectively addressing all of these issues alongside our action on storm overflows to deliver on our pledge to hand over our planet to the next generation in a better condition than when we inherited it.