Artificial fluoridation: R v Northumbrian Water Limited ex parte Newcastle and North Tyneside Health Authority (15 December 1998) High Court, Crown Office

United Kingdom
R v Northumbrian Water Limited ex parte Newcastle and North Tyneside Health Authority (15 December 1998) High Court, Crown Office

This judicial review case concerns the powers and duties of health authorities and water companies relating to artificial fluoridation of water supplies under the statutory scheme contained in Sections 87-91 of the Water Industry Act 1991. Section 87 provides that "Where a District Health Authority have applied in writing to a water undertaker for the water supplied within an area specified in the application to be fluoridated, that undertaker may ... increase the fluoride content of the water supplied by the undertaker within that area." Section 89 provides for a publicity and consultation exercise that must be undertaken by a health authority before making such a request. Section 90 gives the Secretary of State for Health the power to grant an indemnity to the water undertaker in connection with a fluoridation scheme. In March 1994, Newcastle and North Tyneside Health Authority made an application pursuant to Section 87 to Northumbrian Water Limited requesting that it artificially fluoridate waters supplied to certain regions. In September 1997 the Board of Northumbrian Water Limited resolved that Northumbrian Water Limited would not accede to the request of the Health Authority. The Health Authority sought to challenge the legality of that decision by means of these judicial review proceedings. Cameron McKenna were instructed by Northumbrian Water Limited in these proceedings. Northumbrian Water Limited's reasons for its decision were twofold: (1) Few of its customers had shown any interest in the subject of artificial fluoridation, and those that had shown an interest clearly demonstrated that it was a very divisive issue on which strong views were held on both sides of the argument. As regards the merits of the public health benefits of artificial fluoridation, Northumbrian Water Limited took a "neutral stance" in the debate between the pro- and anti- artificial fluoridation camps; and (2) Artificial fluoridation would expose Northumbrian Water Limited to an increased possibility of criminal and civil liability, a substantial part of which would not be covered by the proposals for an indemnity that had been discussed with the Department of Health on behalf of the Secretary of State for Health. In particular Northumbrian Water Limited wanted an indemnity to cover any criminal liabilities. The Secretary of State had not been prepared to grant such an indemnity. The Health Authority attacked both aspects of the decision. It claimed that under the statutory scheme, as the health authority was the primary body concerned with public health matters, once it (the health authority) had made its application, it was not permissible for the water company to take a "neutral stance" towards the public health benefits. The Health Authority argued that Northumbrian Water Limited was obliged to proceed from the basis that the health authority had established that artificial fluoridation brings positive health advantages and it could only to decline to artificially fluoridate if it had good reasons which outweighed those positive advantages. As regards the second reason, the Health Authority argued that it would be against public policy and therefore unlawful to offer an indemnity in respect of criminal liabilities.

It was therefore irrational for Northumbrian Water Limited to refuse the request on the basis that the Secretary of State would not offer such an indemnity. The case ultimately turned on the scope of the discretion granted to water companies under Section 87 (which notably provides that the water company "may", rather than "shall", fluoridate following an application by a health authority). The judge held that whilst decisions of a privatised water company are amenable to judicial review, private water companies are not to be regarded in the same way as public bodies which have an obligation to exercise their powers for the public good. As a commercial organisation, Northumbrian Water Limited had to take account of its obligations to its shareholders and was only required to exercise its powers for the public good to the extent required to do so by statutory provisions laid down by Parliament. The judge was shown passages from Hansard setting out the Parliamentary debate relevant to the Water (Fluoridation) Act 1985 which contained the predecessor to Section 87. In Hansard there were clear Ministerial statements in both the House of Commons and the House of Lords which supported Northumbrian Water Limited's contention that the purpose of the Act was not to encourage artificial fluoridation, but rather simply to provide the power to artificially fluoridate if both the health authority and the water undertaker wish to do so.

The discretion given to water companies under Section 87 was therefore very broad. The court held that Northumbrian Water Limited was within its rights to refuse Newcastle and North Tyneside Health Authority's request for the reasons given.