126 The law is an ass

Everyone knows that the famous quote originally comes from Oliver Twist by Charles Dickens, published in 1838, and many will also know that it was actually “The law is a ass”.? However, apparently everyone is wrong, as the phrase first appeared in the play “The Parricide, or, Revenge for Honor“ in 1653.? There is some uncertainty as to the author.

The law in question in this episode of the blog is the Water (Special Measures) Bill currently awaiting signature by King Charles to come into force as the Water (Special Measures) Act.

Back in Episode 112 I commented on Clause 2 in the first draft of the bill covering Pollution Incident Reduction Plans.? I have now checked the latest amended version of the bill that I can find online.? The definitive final version is currently being printed on vellum and is not readily available.? I also looked at Clause 3 on emergency overflows and at some of the debates on the bill.

Pollution incident reduction plans (PIRPs)

The final version of Clause 2 of the bill is substantially the same as the original and requires water companies to draw up PIRPs setting out how they will reduce the frequency of pollution incidents and report on the implementation of those plans.? That in itself seems a Good Thing, however, the ass is in the detail.? The bill creates its own definition of “pollution incident” which does not match that in other laws.? For this bill, a pollution incident is any discharge with content which may be harmful to health or the quality of the environment.? The “may be” does not require that it does cause harm or is likely to cause harm; just that it could possibly cause harm in the wrong circumstances.

So, as all discharges from foul, combined and surface water sewers do have content that could possibly cause harm, the letter of the law is that every discharge must be included in a PIRP with a plan for reducing its frequency of occurrence.

There does seem to be an attitude amongst our politicians that all discharges that haven’t been through a treatment works are a Bad Thing and must be prevented.? To paraphrase the first Duke of Welllington, whose descendent was a prominent proponent of the bill, “I don’t know what effect these discharges will have upon the environment, but, by God, they terrify me”.

How should the sewerage undertakers respond to this requirement; literally or pragmatically.?

1. They could comply literally by producing a massive spreadsheet that listed every time an overflow spilled based on Event Duration Monitoring and every time it rained in areas served by each surface water outfall.? This might have the effect of showing that the law was an ass, but what would they put in the plan as to what they intended to do about those discharges.
2. They could ignore what the bill actually says and use the definition of pollution in the Water Resources Act and so report on all overflow spills and surface water sewer discharges that are not compliant with their discharge permits.? It is not clear what to do about surface water discharges that are not currently subject to discharge permits.? Include them or ignore them??
3. They could ignore both the wording of the bill and the legal definition of pollution and only include those incidents that are classed as “pollution” under the Environment Agency pollution reporting system.? This is what is currently reported as pollution and so would be useful in seeing trends in performance.

So careless drafting of the bill has left us with a conundrum of which bit of the law to comply with.

Emergency overflows

Clause 3 of the bill requires that discharges from emergency overflows are reported in real time.? This seems reasonable.? By definition an emergency overflow only discharges when something has gone wrong, so it is sensible to require an investigation of what went wrong and how to stop it going wrong in future.

However there is an exclusion to this requirement, which led to much debate in parliament, that again illuminated clumsy drafting of the bill and lack of understanding amongst our parliamentarians of how sewerage systems actually work.

The relevant clause has not changed since the first draft of the bill.? It states that a discharge from an emergency overflow is where:

“… the overflow discharges content as result of an emergency event of the following descriptions:

• electrical power failure at sewage disposal works;
• mechanical breakdown at sewage disposal works;
• rising main failure;
• blockage of a sewer downstream of sewerage [sic] disposal works.

I am surprised that the pedants amongst our learned representatives did not notice that a “sewerage disposal works” would presumably consist of a fleet of excavators and a giant concrete crusher.? Maybe we need more pedants in parliament.?

The meaning of “sewage disposal works” is implied in the Water Industry Act as works used for receiving, storing, treating and distributing or otherwise disposing of sewage contained in sewers.

The bill does not clarify the requirements for a discharge from an emergency overflow that is due to a cause other than these.? It implies that the discharge need not be reported in real time.? It cannot imply that the discharge is not legally permitted as that would be to overrule its discharge permit.

There was a strong push by His Grace the Duke of Wellington that emergency overflows should not be permitted because of power failure at a sewage disposal works; as there should be sufficient resilience that this never happened.? His amendment was, quite rightly, rejected as not being relevant to the issue of reporting overflow discharges.

However, neither His Grace nor anyone else noticed that the wording of the bill is such that there is no requirement to report a discharge from an emergency overflow for the following reasons:

• Electrical power failure at a sewerage network pumping station
• Mechanical breakdown at a sewerage network pumping station
• Blockage of a sewer in the sewerage network.

I don’t think that is the intention of the bill.

Again the sewerage undertakers have the option to either follow the letter of the law and not bother to report these, or to do the pragmatic thing and report all discharge from emergency overflows.? I would recommend the latter.

Other issues

During the debate there was a suggestion from The Earl Russell that Section 82 of the Environment Act 2021, which requires sewerage undertakers to monitor river water quality upstream and downstream of their discharges, should be amended to place this responsibility on the Environment Agency.

His reasoning was that the sewerage undertakers could not be trusted to correctly record and report the results of the monitoring.? Which just shows how bad the reputation of the water industry is in the UK.

I strongly agree with his suggested amendment but for very different reasons.? River water quality is fundamentally a responsibility of the Environment Agency and is impacted by all sorts of discharges with agriculture having the greatest impact.? If the EA took responsibility for the monitoring then it becomes a tool to understand what the range of impacts are and how to minimise them.? If it remains the responsibility of the water companies then it necessarily becomes a tool to just say “it wasn’t me”.

The amendment was rejected; not because it was irrelevant to the bill being debated, but because of the faulty argument that the monitors, which needed to be installed a distance upstream and downstream of discharges would therefore be on water company land to which the EA would not have ready access.

So, all of you teams desperately trying to negotiate access with landowners to install water quality monitors on their land.? Relax, the government says that it is water company land.? I look forward to the legal cases if you try to rely on that.

Conclusion

The law may not be an ass, but a lot of the wording of the law is asinine.