Milner, R (on the application of) v South Central Strategic Health Authority

Under regulation 5 of the Water Fluoridation (Consultation) (England) Regulations 2005, a Strategic Health Authority must assess the cogency of all arguments for and against fluoridation, weigh the health arguments in favour against all arguments against, and have regard to the extent of public support or opposition. Majority local support is not a legal precondition. A purported government policy imposing such a condition would be inconsistent with the statutory scheme. A public body must have regard to relevant published government policy, but cannot be expected to discover an uncommunicated policy by searching parliamentary debates. Consultation material may be summarised and filtered, provided the decision-makers have access to the important arguments and information needed to assess their cogency.

The claimant sought judicial review of the South Central Strategic Health Authority’s decision of 26 February 2009 to request fluoridation of the public water supply in and around Southampton under section 87 of the Water Industry Act 1991. She argued that the Authority failed to follow an alleged government policy requiring local population support, and failed to assess the cogency of arguments raised during consultation. Permission had been granted on the first ground. A renewed application on the second ground was directed to be considered at a rolled-up hearing, without that order itself granting permission.

The central issues were the proper construction of regulation 5 of the Water Fluoridation (Consultation) (England) Regulations 2005, the relevance and communication of government policy, and whether the consultation process enabled the Authority to discharge its statutory duty.

1. The claim was dismissed. The Authority’s decision was not unlawful.
2. Regulation 5 requires the Authority to assess the cogency of all arguments advanced for and against fluoridation. It must weigh the health arguments in favour against all arguments against, including health, environmental, sociological and personal-autonomy arguments. If the health arguments do not outweigh all arguments against, the process ends.
3. If that threshold is met, the Authority must then have regard to the extent of support for or opposition to the proposal. Greater opposition requires greater weight in the health arguments before fluoridation may proceed. Regulation 5 does not require local public opinion to be favourable and does not impose a majority-support or referendum condition.
4. The alleged government policy was not shown to be the final policy in force at the material time. The later regulations and official guidance pointed to regulation 5 as the applicable framework. In any event, the alleged policy had not been communicated to the Authority. A public body must have regard to relevant published government policy, and should give reasons for departing from it, but it cannot realistically be required to trawl Hansard to discover an uncommunicated policy.
5. The Authority was entitled to use independent analysis and to rely on a Board member and officers to identify the principal arguments. The Board had access to the consultation responses, the Evidence Centre report and other material. The important arguments, including need, cost-effectiveness and environmental risks, had been identified or summarised. The statutory duty to consider cogency did not require every Board member to read every response.
6. The rolled-up hearing order did not itself grant permission on ground 2. Permission on that ground was refused, and the challenge failed in any event.