Artificial fluoridation of water supplies

In a recent case which is of significance to the water industry, the High Court has ruled on the extent of the powers and duties of health authorities and water undertakers under the statutory provisions relating to the artificial fluoridation of water supplies. R -v- Northumbrian Water Limited ex parte Newcastle and North Tyneside Health Authority, was an application for judicial review of a decision by Northumbrian Water Limited ("NWL") not to extend artificial fluoridation of its water. The case was brought by Newcastle and North Tyneside Health Authority ("NNTHA"), one of several health authorities in the relevant area that had applied to NWL to extend the artificial fluoridation. Cameron McKenna acted for NWL which was successful in having the judicial review application dismissed.

Powers of water undertakers

Under the statutory scheme relating to artificial fluoridation of water supplies contained in Sections 87-91 of the Water Industry Act 1991, the ultimate decision on whether or not to artificially fluoridate is given to the water undertaker. Section 87 provides:

"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.

Decision not to extend fluoridation

In March 1994, NNTHA made an application pursuant to Section 87 to NWL requesting that it artificially fluoridate waters supplied to certain regions. In September 1997, the Board of NWL resolved that NWL would not accede to the request. NNTHA sought to challenge the legality of that decision by means of these judicial review proceedings.

NWL'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, NWL took a "neutral stance" in the debate between the pro- and anti-artificial fluoridation camps.
2. Artificial fluoridation would expose NWL 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, NWL wanted an indemnity to cover any criminal liabilities. The Secretary of State had not been prepared to grant such an indemnity.

Judicial review

NNTHA attacked both aspects of the decision. It claimed that under the statutory scheme, the health authority was the primary body concerned with public health matters and therefore once it (the health authority) had made its application it was not permissible for the water undertaker to take a "neutral stance" towards the public health benefits. NNTHA argued that NWL was obliged to proceed from the basis that the health authority had established that artificial fluoridation brings positive health advantages. It could only decline to artificially fluoridate if it had good reasons which outweighed those advantages. As regards the second reason, NNTHA argued that it would be against public policy and therefore unlawful for the Secretary of State to give an indemnity in respect of criminal liabilities. It was therefore irrational for NWL to refuse to artificially fluoridate on the basis that the Secretary of State would not give such an indemnity.

The case ultimately turned on the scope of the discretion granted to water undertakers under Section 87 (which notably provides that the water undertaker "may", rather than "shall", fluoridate following an application by a health authority). The judge held that whilst decisions of a privatised water undertaker are amenable to judicial review, such undertakers are not to be regarded in the same way as public bodies which have an obligation to exercise their powers solely for the public good. As a commercial organisation, NWL 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 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 are clear Ministerial statements in both the House of Commons and the House of Lords to support NWL's contention that the purpose of the Act was not to encourage artificial fluoridation but merely to provide the power to artificially fluoridate if both the health authority and the water undertaker wished to do so. The judge was of the view that in the light of these Ministerial statements, if he were to grant the relief sought by NNTHA, he would in effect be making new law. That, he said, was not the role of the Courts. It was a matter for Parliament. Thus, the judge held that the discretion given to water undertakers under Section 87 was very broad and NWL was within its rights to refuse NNTHA's request for the reasons it had given.

Paul Sheridan and David Short