To ask Her Majesty's Government further to the Written Answer by Lord Darzi of Denham on 9 June (WA 143), whether the undertaking by Lord Warner on 8 March 2005 that "fluoridation schemes would only be introduced where the local population were in favour" (HL Deb, col 706) still represents Government policy.
Section 89 of the Water Industry Act 1991 as substituted by the Water Industry Act 2003 requires strategic health authorities to consult and ascertain opinion before proceeding to make a request to a water undertaker to increase the fluoride content of its water supply. The Water Fluoridation (Consultation) (England) Regulations 2005 (SI 2005/921) make detailed provision about how consultation and the ascertainment of opinion is to be carried out. Regulation 5 sets out the pre-condition to a strategic health authority proceeding to request a water undertaker to increase the fluoride content of its water supply.
Regulation 5 is in the following terms:
"A Strategic Health Authority shall not proceed with any step regarding fluoridation arrangements that falls within section 89(2) of the Act unless, having regard to the extent of support for the proposal and the cogency of the arguments advanced, the Authority are satisfied that the health arguments in favour of proceeding with the proposal outweigh all arguments against proceeding".
The decision under Regulation 5 is to be made by the strategic health authority, not the Secretary of State. Regulation 5 therefore makes clear that it is for the strategic health authority to decide if the health arguments outweigh all other arguments taking into account not merely the cogency of the arguments, but also,
"the extent of support for the proposal".
It is clear that, under Regulation 5, support is a relevant factor, but it is not the only factor or the conclusive issue. It can be outweighed by the health arguments. A majority of local support is not therefore a necessary precondition to the strategic health authority requesting a water undertaker to increase the fluoride content of a water supply.
Government policy is not, and could not be, inconsistent with the regulations. In particular, it could not convert the reference in Regulation 5 to support as a relevant factor into a necessary precondition for a request for fluoridation.
We accept that there may have been a degree of understandable confusion over these issues in the past. However, by way of clarification, the view given by the Chief Dental Officer in February 2008 that,
"a SHA cannot base its decision solely on a simple count of the representations for or against the proposal", correctly represents government policy. Regulation 5 sets out the law and government policy cannot and does not seek to add to it. It is the for the strategic health authority to take the decision to ask a water undertaker to increase the fluoride content of a water supply and to make the judgment required under Regulation 5 as to whether the health arguments outweigh all other arguments. Local support is a relevant factor but is not a precondition for a request.