Health and Care Bill

Baroness McIntosh of Pickering Excerpts

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

156: Clause 163, page 133, line 34, at end insert—
“(10) The Secretary of State may not exercise the powers provided by virtue of—(a) this section to request a water undertaker to enter into arrangements to increase the fluoride content of the water, or(b) section 164 to request modifications to old English fluoridation arrangements,until an impact assessment has been published setting out the impact on health and the environment, including a cost-benefit analysis.”

[Baroness McIntosh of Pickering (Con)]

My Lords, Amendment 156 is in my name, and I declare at the outset that I am co-chairman of the All-Party Parliamentary Water Group. This is a simple amendment, and I would like to cover ground that has possibly not been covered at earlier stages of the Bill.

I understand from the Bill and, more particularly, its Explanatory Notes that the purpose of the clause to which this amendment relates is to transfer from local authorities the power, which they have had since 2013 through the Water Industry Act 1991, to propose and consult on new fluoridation schemes and variations to or terminations of existing schemes. It transfers that authority to the department, the reason being that local authorities and the NHS, which previously had responsibility for water fluoridation schemes, have faced difficulty in implementing them. This includes, most recently, the fact that local authority boundaries are not coterminous with water flows, which requires the involvement of several authorities in such schemes in a complex and burdensome way.

The first question, to which I will return later is: if this authority is passing from the local authorities to the Secretary of State for Health and Social Care, where in the scheme of things do water companies fit? Presumably, it is the water companies themselves that will perform the act. In Amendment 156, I therefore ask simply that the Secretary of State does not exercise the powers within the Bill until such time as

“an impact assessment has been published setting out the impact on health and the environment, including a cost-benefit analysis”.

I was very grateful to my noble friend the Minister for arranging a teach-in, if you like, with the officials in the department and my noble friend Lord Reay. We both benefited from that and were very grateful for it. Subsequently, I also thank the officials for providing, in the first instance, a number of responses to my questions. In particular, I query with my noble friend the level of expenditure, which is significant. We know that we are facing a time of additional pressures—not just an energy crisis but a cost-of-living crisis—and the expenditure incurred by each fluoridating local authority in the financial year 2020-21 is not insignificant.

I will pick out those councils that relate to the largest area, broadly speaking: the West Midlands. I will round the figures up, rather than giving each individual figure. Birmingham City Council spent over £290,000 in that calendar—or, presumably, financial—year. Coventry City Council spent over £206,000. Dudley Metropolitan Borough Council spent over £198,000. Sandwell Metropolitan Borough Council spent over £188,000. Solihull Metropolitan Borough Council spent over £56,000. Walsall Metropolitan Borough Council spent over £167,000. Finally, the City of Wolverhampton Council spent over £121,000. How is this financing passed on to the consumers in those local councils? If adding fluoride to the water supply is passed in the Bill, it is for the Department of Health and Social Care to pick up the cost, so how will it do so? From which part of the budget will this come? Perhaps I have missed it, but I do not see anything in the Bill or the Explanatory Notes that says how water companies have been consulted and how they are expected to enter fluoride into the water supply.

Clearly, the debate on which I have not reached agreement with my noble friend the Minister and the department is on the extent to which it is legal to add fluoride to the water supply. In the court case that I was involved in in my training for the Scottish Bar, in preparation for joining the Faculty of Advocates, I sat through pretty much the whole of the McColl v Strathclyde Regional Council case. The petitioner could see no benefit from fluoride being added to her water supply because she had dentures and was not in need of fluoride for that reason. In fact, it was deemed ultra vires. I shall quote the relevant passage of the judgment:

“In my view the word ‘wholesome’ falls properly to be construed in the more restricted sense advocated by the petitioner as relating to water which was free from contamination and pleasant to drink. It follows that fluoridation which in no way facilitates nor is incidental to the supply of such water is outwith the powers of the respondents. The petitioner therefore succeeds on this branch of her case.”


If my recollection is correct, although they lost on the ultra vires point, the Scottish Government—I cannot remember whether it was in the UK Parliament or the Scottish Parliament—reintroduced a water Act that made legal provision in Scotland that gave them the authority. However, and as my noble friend Lord Reay rehearsed in Committee, I understand that Scotland has chosen not to go down that path. I will come on to that in a moment.

--- Later in debate ---

Finally, any future public consultation on expansion would also include information on the impact of any proposals on health, the environment and cost-benefit analysis. I hope that these reassurances will satisfy my noble friend, at least in part, and that she will feel able to withdraw her amendment.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to all those who have spoken and to my noble friend for the reassurances that he has given. I am particularly grateful to the noble Baroness, Lady Bennett, for pointing out the importance of the cost-benefit analysis. It is disappointing that we have not been told the relative cost-benefit of supervised toothbrushing, particularly since a number of experts, including the adviser to the Select Committee in the other place, have argued that it would be a much better route to go down. I take great comfort from my noble friend saying that the situation will be kept under constant review and that this will continue as more evidence emerges from Sweden, the US and other places outside the UK. I shall, obviously, watch very carefully the secondary legislation to which my noble friend referred. With those few remarks, I beg leave to withdraw my amendment at this stage.

Amendment 156 withdrawn.