§ Lords amendment: No. 1, in page 1, line 9, leave out from "area" to end of line 13.
§ 9.3 pm
§ The Minister for Health (Mr. Barney Hayhoe)
I beg to move, That this House doth agree with the Lords in the said amendment.
This amendment simply seeks to clarify the drafting of clause 1(1). The words that the amendment deletes comprise an amendment moved in Committee by my hon. Friend the Member for Harrow, West (Sir J. Page) on behalf of the water industry. I can assure my hon. Friend that it is only the technical feasibility of fluoridation proposals, not the ethical and medical arguments, which will be covered as far as the water industry is concerned.
The amendment was accepted at the time and it was made clear by my hon. Friend the Member for Oxford, West (Mr. Patten), then the Under-Secretary of State for Health and Social Security, that the extra words were probably not necessary. He accepted the amendment conditionally on the understanding that substantial redrafting would have to be clone. After considering the matter, we find that the words are not only unnecessary but that they would render the Bill legally ambiguous even with redrafting. The Bill is intended to remove ambiguity, so it would be sensible to delete the words.
Any statutory water undertaking considering fluoridation is bound to consider whether it is technically feasible and whether it can be done in such a way as to limit the supply of fluoridated water to an area. The further gloss of the additional words is therefore unnecessary.
§ Sir John Page (Harrow, West)
There is a certain amount of déjà vu about being back here discussing fluoridation. I am grateful to my right hon. Friend the Minister. I congratulate him on assuming his important new position. This is the first time that I have addressed him in the House since then, although I have already written him about 700 letters on health matters.
My right hon. Friend clearly described what has happened about this amendment.
I feel like a man who thought that he needed some spectacles. A committee discussed whether he did and he was told to put them on. He was told that the prescription might need altering but later the spectacles were snatched from him and he was told that he did not need them at all.
My right hon. Friend has made me happy because the water industry is particularly anxious not to be involved in the medical and ethical aspects of the Bill. The industry believes that it has only a technical responsibility. My right hon. Friend's remarks are extremely helpful, especially since Lords amendment No. 6 puts certain responsibilities on health authorities which are not similarly put on water undertakers.
§ Mr. Ivan Lawrence (Burton)
As I was saying when I was interrupted in March, the Bill is no good. It is not good for young people; it is no good for old people; it is no good for adults; it is no good for society because it 497 removes freedom of choice; it is no good for the Government who are losing their reputation for upholding the liberty of the individual; it is no good for the reputations of my hon. Friends who were enthusiastically against fluoridation and who have now changed their minds; it is no good for Parliament, because it is against the wishes of the people.
I rise in a last effort to improve the Bill—if not to make a bad Bill good, at least to try to make it better.
As was widely suspected last time we discussed the Bill, I did not have a full opportunity to deploy my arguments. I had hardly passed the introduction when it was time to stop. I have been under pressure to lengthen my contributions. I recall the words of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), then the Minister for Health, who, observing the hon. Member for Holborn and St. Pancras (Mr. Dobson), said that he was sure that he did not have a beard at the beginning of my speech. I see that tonight the hon. Gentleman's beard is very long. Perhaps it will be longer before these proceedings are over. I have no wish to delay the House longer than is necessary.
I am told that while I was speaking an American visitor asked what I was talking about and received the answer, "About four and a half hours." When the visitor said, "Yes, but what is he speaking on?"—from one of the attendants, I believe—the answer was, "I do not know. He did not say." That means that I must have been speaking too fast. Indeed, people have said that I should slow down so as to ensure that my arguments get across. It is clear from the way in which the House has filled up for this debate that many people still do not understand the arguments. I can report, however, that since we last met in these pleasant circumstances at a reasonably relaxed hour of the night people all over the country and, indeed, the world have come forward to say that they do not want fluoridation. No doubt in the course of these deliberations we shall be able to refer to various excellent examples.
§ Mr. Keith Best (Ynys Môn)
Is my hon. and learned Friend aware of the survey conducted by the Leicestershire community health council? That survey posed the very neutral question,From what you have heard, do you think that fluoride can help reduce tooth decay?The answer from 79 per cent. of respondents was "Yes". My hon. and learned Friend and I may not agree with that answer, but it shows the disinterested nature of the report. People were then asked:If fluoride can reduce tooth decay, are you in favour of it being available for individual application in toothpaste, school milk, tablet form, etc.?To that question, 82.24 per cent. of respondents answered "Yes". The critical question was:If fluoride can reduce tooth decay, do you think it should be added to the public water supply?Bearing in mind the disinterested nature of the questions so far and the answers suggesting widespread support for fluoride, it is surprising to note that only 26.64 per cent. said "Yes" and a massive 62.72 per cent. said "No", meaning that fluoride should not be added to the water supply.
§ Mr. Lawrence
I am indeed aware of that survey. The Lincoln, Rutland, and Stamford Mercury reported on Friday 30 September 1985: 498The results, according to a press release from the CHC, have dealt 'a body blow' to the pro-fluoride lobby.It then goes on to quote from the community health council.
In the past, we have not greatly favoured community health councils having a decisive role because they are not democratically elected, but we may now have to revise our views as the Leicestershire community health council is not the only one to take such a position. The Somerset community health council at a meeting on 24 July this year also condemned, by 11 votes to three, the Government's attempt to allow fluoridation of the water supply. That decision was taken after speakers from both sides had been heard. The only occasions on which community health councils vote in favour of fluoridation tend to be those on which the "anti" side is not heard or is ignored.
§ Mr. Terry Davis (Birmingham, Hodge Hill)
Will the hon. and learned Gentleman confirm that the "massive" 60-odd per cent. referred to by his hon. Friend the Member for Ynys Môn (Mr. Best) represented those who said "No", meaning that fluoride should not be added to the water supply, rather than those who said that they did not know?
§ Mr. Lawrence
The question was:If fluoride can reduce tooth decay, do you think it should be added to the public water supply?To that question, 1,489, or 26.64 per cent., answered "Yes", 3,506 or 62.72 per cent. said "No" and 595 or 10"64 per cent. said that they did not know. A total of 5,590 people were surveyed. The community health council said:A totally unbiased survey has been conducted and we believe that the figures clearly speak for themselves, and we hope that full account will be taken of them.There are bound to be some people like the hon. Member for Birmingham, Hodge Hill (Mr. Davis) who are disappointed that their views are not accepted by the general public in Leicestershire. This happens to be a democracy, however, and in a democracy the voice of the few must give way to the wishes of the many on matters such as this. My right hon. and hon. Friends say Amen to that.
§ Mr. Davis
As the hon. and learned Gentleman has described the survey as completely unbiased and as he is obviously so widely read in the local newspapers of that part of the country, will he say whether he saw a letter in the Loughborough Echo written by a lady who described her experience of being invited to take part in the survey? In her letter, which was published on 14 June, she said:I am angry about something that happened while I was waiting … with a group of children and feel your readers should be made aware of it. I was approached by a lady who said politely that I looked too busy to be troubled with a questionnaire on fluoride. When I said that it was something I believed in and that I would take the trouble to fill it in she turned to me and said: 'You're never in favour of putting fluoride in our water are you? What if I get cancer?' I was so taken aback that it was a moment before I could say that perhaps if she had such strong views on the subject she should not be doing the survey.Does the hon. and learned Gentleman still maintain that the survey was unbiased?
§ Mr. Lawrence
It is quite pitiful that, when there is a survey of 5,590 people, the pro-fluoridation lobby can produce only one person, who was no doubt encouraged to write to the newspaper. It is always possible to find 499 people who will respond to such pressure. If the hon. Gentleman can find only one person out of 5,590 who were asked their views in an independent and absolutely unbiased survey conducted by the community health council—they frequently support fluoridation—and not the anti-fluoridation lobby, he has revealed the hollowness of the pro-fluoridation lobby.
§ Mr. Lawrence
If the hon. Gentleman gives me a chance, I shall draw his attention to the public opinion poll that the pro-fluoridation lobby has taken and in which the question was so biased that hundreds of people got the answer wrong.
§ Mr. Lawrence
I do not know this good lady from Leicestershire or the circumstances in which she wrote. I would not dream of demeaning her. No doubt she is an honest and upright lady, hut, as I have not had the opportunity to examine her to establish on what basis the letter was written, I cannot answer the hon. Gentleman's question.
One example of bias out of 5,590 people surveyed hardly speaks loudly in support of the hon. Gentleman's intervention.
§ Mr. Lawrence
Before my hon. Friend speaks, may I say that the service that he has done to draw the attention of the people of Leicestershire and the rest of the country to the evils of fluoridation have been stirring almost beyond words. Without my hon. Friend's activities, it is at any rate doubtful whether the community health council in Leicestershire would have conducted this operation. All of us who believe that fluoridation must be resisted because of the harm that it will do to health and because it will interfere with people's freedoms have much to thank my hon. Friend for.
§ Mr. Speaker
Order. Before the hon. Member for Leicester. East (Mr. Bruinvels) rises, may I tell him and the hon. and learned Member for Burton (Mr. Lawrence) that this is not a general debate on the benefit or otherwise of fluoride. I direct their attention to the amendment, which says:Page 1, line 9, leave out from "area" to end of line 13.The hon. Gentleman must direct his argument to the amendment and not to the general principle of whether fluoride should be introduced.
§ Mr. Lawrence
I apologise, Mr. Speaker. I was sidetracked by hon. Members who asked for specific answers to specific questions which were out of order. I ought to have been less courteous to them and more courteous to the Chair. I hope that you will forgive me. Perhaps in due course at the proper moment my hon. Friend the Member for Leicester, East will be able to explain the Leicester survey.
500 I am against Lords amendment No. 1 because it removes a protection that this House put into the Bill. I concede that this House did not provide the best possible protection in the Bill, and I concede that the form in which that limited protection was produced was somewhat inelegant. I also concede that some of its wording at any rate may have been mere surplusage. Nevertheless, by removing that clause the Bill and its scope have been expanded against the interests of the country and in favour of the views of those hon. Members who voted for the Bill on Second Reading and in Committee. The Bill clearly laid down that the fluoride content of water could be increased only if, in the opinion of the statutory water undertaker, it was "reasonably practicable" to do so. That phrase has been removed, and it is that to which I object.
What is reasonable has been interpreted endlessly by the courts, and as I wish to hurry on the proceedings I shall not at this stage go into those various definitions of the word "reasonable". What is practical has, likewise, often been defined by the courts, and again there is no need to waste time on that.
It is not necessary to refer to those two words because the courts have provided definitions for the phrase "reasonably practicable". For example:'Reasonably practicable' (Metalliferous Mines Regulation Act 1872 (c. 77). s. 23). What is 'reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions which might be taken are disproportionate to the risk involved".That was the decision of the court in the case of Marshall v. Gotham Company reported in Appeal Cases, 1954, at page 360.
It was defined again in the case of Braham v. Joseph Lyons and Company in 1962 in the following terms:'So far as is reasonably practicable' (Factories Act 1937 (c. 67), s. 25(1) as amended, now Factories Act 1961 (c. 34), s. 28(1)) does not mean that a factory floor must be kept free from obstructions and slippery substances at all times but that all reasonable measures must be taken to keep it freeIn Scotland in 1964, in the case of Fern v. Dundee Corporation, it was stated:If a precaution is practicable it must be taken unless in the whole circumstances, that would be unreasonable".I might add that "reasonable" in this context has a separate meaning from the word "practicable". It does not always have a separate meaning. In a case in 1950, Naylor Benzon Mining Co., the learned judge said:The words 'reasonably necessary', used as a phrase in which the adverb is designed to qualify the adjective, are meaningless. A thing is necessary or it is not necessary. It may be regarded or treated as necessary in one context and not in another, but the context cannot be provided by merely preceding the word 'necessary' with an adverb such as 'reasonably'. As it stands, the phrase, to me, is a contradiction in terms.That criticism cannot be levelled at the phrase "reasonably practicable". Therefore, if one applies the definitions to the circumstances of fluoridation, what is reasonably practicable is this: that the Bill gives the water undertakers the power to fluoridate. Before the clause was amended by their Lordships, it obliged the water authorities to use their discretion and to take into account what was reasonably practical. That means that they can fluoridate unless it would be unreasonable to do so.
I argue that it would be downright unreasonable for a water authority to fluoridate against the clearly expressed wishes of democratically elected district and county councils. Moreover, if the community health 501 council in an area expresses its disapproval, not just through a vote of the council but through a public opinion poll—even with all the obvious faults that that has—it would be utterly unreasonable for the water authority to go against the wishes of the people and force them to be mass-medicated.
I might be asked to show the House some practical examples of where fluoridation would take place against the wishes of the people, and would therefore be unreasonable. In answer to that, I give the House the example of Leicestershire and Somerset. I can give the example of the health authority and the water authority in the midlands, which decided to fluoridate. Their decision was directly contrary to views expressed by Staffordshire county council, Shropshire county council, Gloucestershire county council, Herefordshire county council and Worcestershire county council. Some district councils also expressed a view—
§ Mr. Lawrence
That council is not on my list. Perhaps it decided against fluoridation later — [Interruption.] May I finish the list first? If not, we shall be here all night, and I am trying to avoid that, if possible.
The district councils which objected include Newcastle-under-Lyme, Stafford, South Staffordshire, East Staffordshire, Lichfield, Cannock Chase, Tamworth and Stoke-on-Trent. They have all said "No". Oswestry, North Shropshire, South Shropshire, Shrewsbury and Atcham, The Wrekin and Bridgnorth in Shropshire have all said no. Malvern Hills, Wychavon, Worcester and Hereford have all said no. The district councils of Cheltenham, Gloucester, Tewkesbury, Stroud and Forest of Dean in Gloucestershire have all said no. Wolverhampton, Stratford-on-Avon, South Derbyshire, Broxtowe and Nottingham councils have all said no. What do the health authority and the water authority say? Yes.
It is utterly unreasonable, it is practically unreasonable, it is unreasonably practical—whatever combination of words one uses, it cannot be reasonable for a water authority to fluoridate water in areas where the overwhelming body of county councils, district councils and community health councils disagree.
§ Mr. Walker
Is my hon. and learned Friend aware that in Scotland the water authority is the regional council——
§ Mr. Walker
Tayside regional council, which is an elected authority, is the water authority, and it has said, "No" to fluoridation.
§ Mr. Lawrence
I am delighted to hear that. I suppose that I did know that, but because of the sheer number of councils that have opposed the measure I had momentarily forgotten.
502 The list does not end there, because there are the parish councils in the regional health authority, which are covered by the west midlands decision to fluoridate. A total of 148 have been circularised by the Staffordshire Parish Councils Association. Of the 72 replies, 12 were in favour of fluoridation—none conducted a survey—58 were against, of which 22 conducted a local survey, and two did not know. Of those responding, 86 per cent. of the parish councils in Staffordshire are against fluoridation of the water supply, and 14 in favour. Forty per cent. of those against fluoridation bothered to conduct surveys. Yet the health authority has said that fluoridation is a good step. The medical and dental know-alls are telling the people who want their freedom that their freedom can go and disappear because they know best, and are the do-gooders who will tell the people what they can and cannot have by way of medication. The words "reasonably practical"——
§ Mr. Lawrence
If my hon. Friend tempts me I can show him definitions where practical and practicable mean the same thing, but I do not wish to be tempted. because I want to make progress.
§ Mr. Best
Before my hon. and learned Friend leaves the point about the councils, is he aware that I recently turned up an interesting piece of information, which shows that, as long ago as 1969, 12 councils voted against fluoridation after receiving a Ministry's circular letter on 20 June? They were Cheshire, Denbighshire, Bolton, Hastings, Southampton, Southend-on-Sea, Sunderland, Torbay, Hackney, Havering, Thames and Lewisham. Is he further aware that six other councils voted against fluoridation after the publication in July 1969 of the Ministry's 11-year report? They included Cardiganshire, Darlington, Grimsby, Salford, Southampton, Southend-on-Sea, and Esher urban district council. That does not say much for the quality of past evidence from Government Ministries, and says a lot for the way in which local authorities can respond to public opinion. I should be grateful if my hon. and learned Friend could comment.
§ Mr. Lawrence
My hon. Friend's erudition is legendary. Once again he has drawn attention to a long list of those who oppose fluoridation, whom it was not possible for me to mention in my opening remarks.
I would have preferred the Bill to have given real teeth to the rights of the people to express their views about whether they wish to have this corrosive poison thrust down their throats against their wishes, whether or not it improves their teeth, whether or not it gives them cancer or some other disease, and whether or not they like it. I would rather that the Bill had some real teeth for the rights of the people to be represented by local authorities and the community health council, but alas that was not the case.
I am reduced—this is no small matter—to proposing amendments (b) and (c), neither of which you, Mr. Speaker, in your wisdom, have chosen. I should like to refer to them, if that is in order. I should have liked the Bill to include the requirement that the authorities are requested to fluoridate by a resolution of each local authority or community health council, or both, whose area falls wholly or partly within the area affected by the application. The amendments were ruled out of order, so I am reduced to requesting—but it is no small thing—that my colleagues vote against the Lords amendment. The 503 restriction, limitation and qualificaion were put into the Bill to demand the statutory water authority to do what was reasonably practical—knowing full well how the courts interpret the word "reasonable", and knowing that, by a simple application of common sense, "reasonable" cannot mean going against the wishes of almost every democratically elected or representative group.
That safeguard having been taken out of the Bill by the other place, I ask my hon. Friends to support me in the Lobby to ensure that it is put back into the Bill to protect the people of our country.
§ Mr. Best
As you have properly told the House, Mr. Speaker, this is not a general debate; it is a debate on a narrow issue—Lords amendment No. 1. But, sadly, this measure does the Conservative party no good. It gave me no pleasure to read a letter in The Listener on 26 September which stated:Who would dream that Mrs. Thatcher, who says she is inflexible when defending the freedom of choice of the individual, would preside over a Parliament whisking through a scheme that would not disgrace a totalitarian regime? A scheme that is to legalise forcibly feeding every citizen with a dose of medicine for a disease that they may not have, via an unavoidable water supply? Everyone would be screaming in protest if it were suggested that legal powers were being taken to enable a bureaucrat to come to your door each day and force a pill down your throat to treat your teeth. Yet this is precisely what fluoridation of water achieves by a back-door and still illegal method.I do not adopt those comments, but it saddens me to read them. They are a manifestation of the widespread feeling of antipathy towards the Bill in general — although we are not discussing that tonight. The Lords amendment seeks to delete half of clause 1(1). We are forced to speculate why that subsection was ever included. Was it an act of negligence by the parliamentary draftsmen to put in mere verbiage and persiflage — something wholly unnecessary and meaningless?
§ Sir John Page
My hon. and learned Friend the Member for Burton (Mr. Lawrence) would not want to include mere verbiage and persiflage. The other place has deleted an amendment that I recommended which was accepted on the basis that it would be heavily amended later. Therefore, we are discussing my amendment on the back of the menu, not the act of a parliamentary draftsman.
§ Mr. Best
I am grateful to my hon. Friend for clarifying the matter. It exonerates the parliamentary draftsmen, but puts me in some difficulty. Even more do I seem forced to support the original clause, now knowing its provenance. It came from my hon. Friend, who does not lightly table amendments. I ask him whether we should still have that safeguard enshrined in the Bill when it passes into law, which it will undoubtedly do because the payroll vote will ensure that. The safeguard ensures that the statutory water undertaker is able to consider whether the additional fluoride in the amounts prescribed by the Bill is reasonably practical.
I shall not delay the House by quoting in extenso various arguments put forward by statutory water undertakers — save one. It concerns something that I noted in the Evening Argus, a newspaper circulating in the Brighton area. It appeared on 15 March under the headingWater chiefs fluoride Bill fear".The article read:Putting fluoride in Sussex water supplies would cost millions of pounds and be difficult to regulate, the Southern Water Authority says. Parliament is considering a 504 controversial scheme allowing health authorities to ask for the fluoridation of household supplies in a bid to cut tooth decay in children. MPs gave the Bill a third reading after a mammoth debate, and the proposals will now be discussed in the House of Lords. But the Southern Water Authority is worried about who would pay. Chairman Sir Godfrey Taylor says that if the scheme is passed, either the government or health authorities should foot the cost. Any scheme would cause problems because the fluoridation of water would have to be done to exact specifications as high levels of the chemical could be dangerous. 'We are not in a position to judge whether fluoride should be added or not. We do not have medical staff,' Sir Godfrey said. 'It would cost a considerable amount of money, certainly millions, and we would expect the Government or health authorities to pay'''.That is the view of one chairman of one statutory water undertaker. I know that that view is shared by a number of other water undertakers.
If the amendment were agreed to, with the deletion of the words as suggested, any ability of the statutory water undertaker to exercise what I regard as a right to consider whether it is practically reasonable to add fluoride to the water supplies would be removed. Effectively, the statutory water undertaker would move off the scene.
It is true that it is not mandatory on water undertakers to fluoridate water supplies on the advice of the health authority if an application is made, for it is still enshrined in the Bill that statutory undertakersmay, while the application remains in force, increase the fluoride content of the water".But they are no longer required to consider whether it is reasonably practicable to do so, and that is my first objection to the deletion of those words.
Those words were added — my hon. Friend the Member for Harrow, West explained the manner in which they were added — specifically to give the statutory water undertaker the opportunity to consider whether it was practically reasonable to add fluoride to the water supplies. That opportunity will now be removed.
Even more insidious is the deletion of the second part of the subsection——without at the same time increasing the fluoride content of the water supplied by them to areas outside that covered by the application.In other words, there would no longer be a requirement if an application, in its execution, ensured that areas outside the area covered by the application received fluoridated water. There is no means to ensure that that will not happen.
This is the addition of fluoride by stealth. It will enable a statutory water undertaker to add fluoride to an area without regard—because the provision will no longer be in the Bill—to whether that fluoride goes into areas outside those covered by the application.
It is important to take account of the views of the people living in those areas. Even with the consultation process in the Bill, which we shall debate at a later stage, the measure does not recognise sufficiently the wishes of the local community, whether expressed by individuals or through directly elected authorities, which neither a health authority nor a statutory water undertaker is.
§ Mr. Richard Hickmet (Glanford and Scunthorpe)
As a matter of definition, does not the Lords amendment widen the discretion that is available to the statutory water undertaker, because, in the Bill as drafted before it went to the Lords, was not the discretion bounded by the consideration of "reasonably practicable" whereas with the deletion it can go outside that definition? Is not the iniquity of the amendment that it extends the fluoride content of 505 the water supplied by statutory water undertakers to areas outside that covered by the application? I agree with the second part of my hon. Friend's proposition, but as to the first part, does not the amendment widen the discretion of water authorities?
§ Mr. Best
I am grateful to my hon. Friend, who would be a worthy opponent in court—a pleasure that I have not yet enjoyed — because he speaks the truth. The amendment widens the discretion. My hon. Friend will know, from his own profound knowledge of the law, that to have no requirement of reasonable practicability, which exists in so many other branches of the law—to which I shall not refer as my hon. and learned Friend for Burton (Mr. Lawrence) did so in some detail—would create a lawyers' paradise, but a nightmare for those who wish to have certainty in the law and some safeguards.
I accept that the words "reasonably practicable" are open to a variety of interpretations and have been the subject of litigation in many areas. However, to remove them altogether would remove the safeguards to which my hon. Friend is referring.
§ Mr. Lawrence
Is not the position that the removal of the words "reasonably practicable" widens the discretion of the water authorities to fluoridate, and that we are asking for a limitation? The effect of the amendment is to expand the influence of the Bill, the purpose of which is to allow as much fluoridisation as possible. Both my hon. Friends the Members for Ynys Mon (Mr. Best) and for Glanford and Scunthorpe (Mr. Hickmet) are right, but it is important to be aware of the distinction. My hon. Friend the Member for Ynys Mon is against anything that gives more discretion to water authorities to act against the interests of the people, is he not?
§ Mr. Best
The Bill is unsatisfactory because it does not allow the people who will be forced to drink the water because they cannot live without doing so and therefore consume fluoride against their wishes the ability to say that they do not want to consume fluoride. The Bill is defective ab initio. It will be even more defective if the amendment is passed, for the reason stated by my hon. and learned Friend for Burton, because it widens the scope. When there is no democratic control, as there is not on health authorities or statutory water undertakers, and no meaningful consultation clause inserted in a Bill to take cognisance of the fact so that it can be acted upon, one is forced to ask quis custodiat ipsos custodes? There is no answer to that question in the Bill because there is carte blanche.
§ Mr. Hickmet
My hon. and learned Friend the Member for Burton (Mr. Lawrence) and my hon. Friend the Member for Ynys Môn (Mr. Best) are concerned to give powers to the statutory water undertakings to prevent the fluoridation of water, but does not the amendment as drafted, inasmuch as it applies to the reasonable practicability test, give a wider discretion to the statutory water undertaking? Let us suppose that the Bill were to be enacted without the Lords amendment. If a local authority or a statutory undertaking were to fluoridate the water on grounds other than reasonable practicability, there could be an application for judicial review, and the decision 506 could be challenged. If the Lords amendment is made, does it not widen the discretion of the statutory water undertaking to do precisely that which my hon. and learned Friend the Member for Burton and my hon. Friend the Member for Ynys Môn wish to do, and make it more likely that the fluoridation of water will be prevented? The iniquity is that the amendment pays no regard to wider questions.
§ Mr. Best
I can encapsulate the views of my hon. and learned Friend the Member for Burton, my hon. Friend the Member for Glanford and Scunthorpe (Mr. Hickmet) and my own by saying that in the clause, as drafted, there are three safeguards. First, on a health authority's application the statutory water undertaker is entitled to fluoridate the water supplies. It is not forced to do so. That is inherent in the word "may". The statutory water undertaker may increase the fluoride content of the water. The water undertaker will therefore consider whether or not to fluoridate the water supply.
The second safeguard is that certain criteria are laid down relating to the way in which the statutory water undertaker will reach a decision on whether to fluoridate the water supply. The first of the two criteria provides that in the opinion of the statutory water undertaker it is reasonably practicable to fluoridate the water supply. In the first instance, the water undertaker is given the power to say whether it will fluoridate the water supply. Then it is required to consider whether it is reasonably practicable to do so. The third safeguard is that the water undertaker must have regard to the fact that it must not increase the fluoride content of the water supplied by it to areas outside the area covered by the application.
There are three safeguards, but in reality the last two are inherent in the first. They are the criteria by which the first safeguard shall be judged. The statutory water undertaker is given guidelines by which to reach its decision. If those guidelines are removed, the statutory water undertaker is provided with no criteria and no assistance with which to reach a decision. In effect, the first safeguard is removed. The water undertaker may increase the fluoride content, but if it is not told how to reach its decision it will not be required to exercise that right in any particular way.
§ Mr. Hickmet
By his analysis, my hon. Friend must concede that he has argued himself into precisely the corner that I was trying to portray. The amendment widens the discretion, otherwise the statutory water undertaker's discretion will be perceived to be dependent upon two tests. If the Bill were to be passed unamended, when arguing about how it has exercised its discretion the statutory water undertaker might be found to have exercised it unreasonably if its discretion were exercised on grounds other than reasonable practicability, or the effect on water supplies outside the area supplied by it. If my hon. Friend wishes to prevent the fluoridation of water, the statutory undertaker has to be armed with a much wider discretion than it has now, otherwise it will find that it has acted ultra vires.
§ Mr. Best
My hon. Friend is right. No doubt he will be conversant with Professor Hart's book on administrative law. He will know the great dangers that exist where any authority is given freedom untrammelled by guidelines. The problem is that one does not know, although one may suspect, that it would be subject to 507 litigation as to whether a statutory water undertaker would have to act judicially. Would it have to observe the rules of natural justice? Would it have to consider both sides of the argument?
With great respect to those who drafted the Lords amendment, it has not been drafted by a lawyer who wishes to reduce the amount of litigation. If the amendment is passed, it will increase litigation. The matters to which I have referred are not answered. A point which would appeal to hon. Members on both sides of the House, and particularly, I suspect, to Opposition Members, is that there is a grave danger if we pass legislation which effectively delegates authority from the House to non-elected undertakers, such as a statutory water undertaker, but fail to give guidelines whereby they can be properly controlled.
I realise the strength of feeling among Opposition Members who perhaps desire to see greater central Government control than many of my hon. Friends would wish. Many of us on this side of the House wish to see local authorities taking more decisions. If Opposition Members are concerned about a negation of centralised control, about power slipping from the grasp of the House and about giving untrammelled powers to statutory water undertakers or any other authority, they should support the amendment, because it would achieve that. It would give water authorities complete freedom to exercise a decision to fluoridate water supplies without giving any criteria by which that decision might be regulated. That is particularly insidious, damaging and alien to the belief of most of us that a sacred function of Members of Parliament is to ensure that power does not go too far beyond the elected member, nationally or locally.
I have dealt with the question whether the "reasonably practicable" test will disappear. I am even more concerned about the total absence of a requirement that there should not be artificial fluoridation of water supplies outside the area of an application. By removing the second portion of words which would be deleted by the amendment we would achieve that object. I do not think I was being euphemistic or unfair to the Bill by describing it as fluoridation by stealth. That is precisely what would happen. Either there is a need for a health authority to make an application to determine that an area will be fluoridated, or that in itself is a mere chimera, a mere piece of window dressing for massive artificial fluoridation of the whole country.
If we believe that there is significance in clause 1 as drafted—that a health authority be required to make an application for artificial fluoridation of water supplies—that in itself must be precise or it is meaningless. If it is not precise, it becomes meaningless because people outside the area of the application will be affected.
My grave concern is precisely that the deletion of these words achieves that object. No doubt the Benthamites among us will say that that does not matter as long as the majority of people are happy getting fluoride in the water supplies, that if there are one or two objectors that is tough luck. It may be unfortunate that they live in an area outside the area covered by the applications made by the health authority, or it may be that no decision has been taken for their area. Of course, there is no consultation for them, even within the present confines of the Bill. There is no consultation for an area outside the area covered by the substance of the application. One can understand that argument.
§ It being Ten o'clock, the debate stood adjourned.