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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Milner, R (on the application of) v South Central Strategic Health Authority [2011] EWHC 218 (Admin) (11 February 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/218.html Cite as: [2011] PTSR D27, [2011] EWHC 218 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of GERALDINE MILNER |
Claimant |
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- and - |
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SOUTH CENTRAL STRATEGIC HEALTH AUTHORITY |
Defendants |
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- and - |
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SECRETARY OF STATE FOR HEALTH |
Interested party |
____________________
Mr JOHN HOWELL QC and Mr JEREMY HYAM (instructed by Capsticks LLP) for the defendants
Mr JAMES EADIE QC and Mr DAVID PIEVSKY (instructed by DWP/DH Legal Services) for the interested party
Hearing dates: 19th and 20th January 2011
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Crown Copyright ©
Mr Justice Holman:
The issue
The statutory framework
"89(1) Before taking any step mentioned in subsection (2) below, a relevant authority [viz the SHA] shall –
(a) consult and ascertain opinion in accordance with regulations made by the appropriate authority [the Secretary of State]; and
(b) comply with the requirements set out in regulations made by the appropriate authority.
(2)…..
(3) Regulations –
(a) under paragraph (a) of subsection (1) above shall include provision about the process which relevant authorities are to follow for the purposes of that paragraph;
(b) under paragraph (b) of that subsection shall include provision about the requirements which must be satisfied (with respect to the outcome of that process or otherwise) before a step mentioned in subsection (2) above may be taken.
(4)…"
"Consultation
3. (1) In order to consult and ascertain opinion before taking any step concerning fluoridation arrangements that falls within section 89(2) of the Act, a Strategic Health Authority shall –
(a) publish details of the step they propose to take, and the manner in which individuals who would be affected by it and bodies with an interest can make representations regarding the proposal –
(i) in one or more newspapers circulating within the area to which the arrangements relate and
(ii) in other such media accessible within that area as the Authority consider appropriate for the purpose of bringing the proposal to the attention of individuals affected and bodies with an interest;
(b) give notice of the proposal to every local authority whose area falls wholly or partly within the area to which the arrangements relate.
(2) The details published under paragraph (1)(a) shall include –
(a) the nature of the step the Authority propose to take;
(b) the reasons for the proposal;
(c) the area affected by the proposal; and
(d) the period, being a period of not less than 3 months from the date on which the details are first published, within which representations can be made to the Authority.
4. …..
Outcome of consultation
5. 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."
"EXPLANATORY NOTE
(This is not part of the Regulations)
These Regulations elaborate on the consultation requirements provided for in section 89 of the [1991 Act] ….
The Regulations provide for the Authority's proposal to be advertised … They also specify the criteria by which the Authority are to determine whether, in the light of representations made to them, they should proceed with the proposal (regulation 5)…."
Hansard and the evidence of the alleged policy
"In fact, the enactment of the amendment may not lead to any new fluoridation schemes – that would depend on what people decided locally – but it would give local communities the choice of having their water supply fluoridated ….
Proposed new section 89 provides for consultations. As I indicated, no new fluoridation scheme would go ahead without the support of the majority of the local population determined by local consultations conducted by strategic health authorities …. we propose to introduce a regulation-making power to cover the detailed requirements."
"…… The word "referendum" never passed my lips. We shall hold wide discussions on this method of consultation …."
"We are not suggesting a referendum …. There is a difficulty in weighing up the responses, but whatever the case, local opinion must be in favour of the proposal. It will not proceed if all the indicators are overwhelmingly against it, as the regulations to be introduced will make absolutely clear. Local opinion must support the measure overall."
"Whatever mechanism is used, a clear majority of people should be in favour of fluoridation."
"Outcome of consultation
5. A Strategic Health Authority shall not proceed with any step regarding fluoridation arrangements that falls within section 89(2) of the Act unless the representations made by individuals affected and bodies with an interest are predominantly in support of it."
"…. it is fundamental to our policy that a strategic health authority should only arrange for its drinking water to be fluoridated where the local population is in favour."
"Turning to Regulation 5, it will not surprise your Lordships that more comments were received on this regulation during our consultation than on any of the others. We remain of the view, though, that decisions on fluoridation should not be undertaken as a result of referendums. However well they were organised, it is unlikely that a majority of the population would vote. There is a strong correlation between tooth decay and social deprivation, and we want SHAs to take account of the views of all people across all social classes. Let me dispel any suggestion, however, that we have diluted our commitment that fluoridation schemes would only be introduced where the local population were in favour. Regulation 5 requires SHAs to take account of the extent of support for their proposals. They must also consider the cogency of the arguments. There is a host of disinformation put around about fluoridation, which is likely to be recycled in consultations …. The SHA needs to scrutinise the responses received and weigh the arguments in favour of proceeding with those against." [my underlining]
"The noble Earl, Lord Howe, raised issues about the strategic health authority being required to show a majority in favour. As I have tried to say, we do not consider a head count alone is the most appropriate way of reaching a decision …. The strategic health authority will have to look at the issues and weigh the responses from interested bodies to ensure that the weight of opinion is in favour. I would argue that that is a demanding requirement."
Pausing there, that passage clearly distinguishes "majority" opinion from "the
weight of opinion".
"…. it is fundamental to our policy that a strategic health authority should arrange for its drinking water to be fluoridated only when the local population is in favour."
"At the end of the day, the judgment is the strategic health authority's, to be made on the basis set out in regulation 5. The details of the consultation will be carried out in line with what I have said and with the detailed written guidance that we will produce." (my underlining)
The Chief Dental Officer's letter of 5 February 2008
The argument in support of ground 1
(i) The final state of government policy
(ii) A policy in the alleged terms was never communicated to SHAs
(iii) A policy in the alleged terms is inconsistent with the Act and the regulations
Postscript under ground 1
"The current Secretary of State's position in relation to the exercise of powers conferred on SHAs under legislation set out above, and specifically regulation 5, is in summary as follows:
a. SHAs' decisions must be taken in accordance with regulation 5, applying the factors and approach there set out. The legislation, properly interpreted, represents the law; and no policy can be adopted which is inconsistent with it.
b. As regulation 5 makes clear, majority local support is not a necessary precondition to a request being made. It is a factor to be taken into account by the SHA, and no more than that.
c. For the avoidance of doubt, this government does not purport to advance or espouse a policy inconsistent with the relevant legal analysis set out in (a) and (b) above."
"Clarity as to how cogency has been assessed … Please note that the compilation report will not make a 'judgment' about cogency. It will set out the arguments and submitted evidence in support of those arguments, plus outline the perceived quality of evidence. It will be up to the Board to use this information to make their decision about cogency. This ensures that an external party is not responsible for decisions about cogency, but is providing the Board with the information required to weigh this up."
On the same day Dr de Silva replied by an email which essentially confirmed that approach (now TB 3: 136).
"It is not the case that the arguments were not properly considered. They were either included in evidence placed before the Board or were considered by me and my team and deemed to add nothing new to the body of evidence such that they would require to be raised with the Board." (my emphasis)
Outcome