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Lord Falconer of Thoroton moved Amendment No. 36:

The noble and learned Lord said: My Lords, this is a formal amendment, I hope, to do some tidying up. It is grouped with Amendment No. 30 and we have already debated it, rather imperceptibly, but we have debated it.

On Question, amendment agreed to.


Lord Grocott: My Lords, before we move on to the next items of business—two sets of regulations and an order—it may be helpful if I spell out what I hope will happen in the next couple of hours. The Bill will now be reprinted as amended, which will take, we guess, about an hour. As soon as it has been reprinted and is available in the Printed Paper Office, a note to that effect will be placed on the annunciator so that noble Lords will know that the Bill is available. They will then be able to table amendments for Third Reading, although should they be minded not to table any amendments for consideration at Third Reading I do not think that it would disappoint too many people. Half an hour will be allowed for amendments to be tabled and we expect that the House will be reconvened about 10 minutes after that. Of course, we do not know how long the regulations will take to debate, but we estimate that there will be about 1 hour and 40 minutes between the conclusion of Report stage and the start of the Third Reading. I am not offering the House a time now, because we can move seamlessly to the regulations, but this is the best estimate at the moment.

Water Fluoridation (Consultation) (England) Regulations 2005

8.7 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Warner) rose to move, That the draft regulations laid before the House on 22 February be approved [10th Report from the Joint Committee].

The noble Lord said: My Lords, I have a feeling this could rapidly empty the Chamber.

One of the Government's main priorities is to reduce inequalities in health. There is a strong correlation between dental decay and social deprivation, and yet, in deprived areas where the water is fluoridated, people have as good oral health as residents of much better-off areas of the country. However, we recognise that some people have strong views on fluoridation, and 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.
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Studies show that children in non-fluoridated areas are more than twice as likely to have had toothache during their lives as those in fluoridated areas. A study in the north-east has shown that five-year-old children were five times more likely to suffer from a dental abscess in non-fluoridated areas than in fluoridated areas.

Fluoridation does not only benefit children. In adults, studies in this country and abroad have shown that adults living in fluoridated areas keep more of their own teeth for longer and have fewer dental problems. The Water Fluoridation Consultation (England) Regulations 2005 apply to situations where SHAs propose to enter into, vary, terminate or maintain arrangements with a water undertaker to fluoridate its water. The indemnity regulations, which I will come on to, provide for indemnities to be given to water undertakers who fluoridate the water on behalf of an SHA.

Our intention with the consultation regulations is to ensure that an SHA conducts wide-ranging consultations in which the issues around the effects and safety of fluoride are fully explored, and then that the SHA assesses the outcome of the consultations in an objective and transparent manner.

I turn now to the details. During the consultation conducted by the Department of Health on these regulations, the need was stressed to ensure that the "bodies with an interest", which the SHAs would be required to consult in Regulation 3, covered all those organisations for which fluoridation might have implications. That would include not just medical and dental organisations, but, for example, food or drink companies that might need to consider whether the use of fluoridated water was compatible with their business aims and manufacturing processes. We will certainly refer to businesses in the guidance we will issue on implementation of the regulations.

Our only reason for not being more specific in the regulations is to ensure that we do not limit the scope of SHAs to involve bodies with an interest in their localities that we had not thought of in the department. SHAs must consult all local authorities whose area falls even partly within the area to be fluoridated.

Regulation 3 describes the measure an SHA must take to publicise and encourage debate on its proposals. During the consultations, it was suggested that we should insist that the SHA published its proposals in more than one newspaper. I am the last person to underestimate the power of the press, but we wish to see SHAs use the full range of modern communication techniques in conducting consultations. I am well aware that not every family has a computer, but resources like websites, helplines and focus groups are capable of reaching sections of the population who may not read the public notices in the local paper.

I am sorry if Regulation 4 looks a bit complicated. We wish to respond to representations made during the passage of the Water Bill that fluoridation schemes should not be allowed to continue indefinitely without
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some public reappraisal. On the other hand, water distribution systems are complex engineering schemes that periodically require variation and maintenance.

We have sought to strike a balance between allowing sufficient flexibility for relatively minor changes to be made without consultation, while ensuring that major variations or investment decisions are not taken without consultation. Where, for example, major investment was required in new plant to maintain a fluoridation scheme, there would be a need to check whether the benefits to oral health would be justified by the costs of this investment. The SHA would need to consult on cost benefits in accordance with these regulations.

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. In the past, the department has received identical standard letters, all citing an association between fluoridation and commonly-occurring illnesses or disabilities, for which there is no published research evidence. The SHA needs to scrutinise the responses received and weigh the arguments in favour of proceeding with those against.

I now turn to the indemnity regulations. We are often asked why, if the Government are so confident that there are no risks to health from fluoridation, they need to indemnify water companies against claims arising from fluoridation schemes. The answer is that the companies are commercial organisations whose core purpose is to supply water. As fluoridation is a public health measure, the strategic health authorities pay the companies the full cost of fluoridation. In accordance with good business practice, they need to be able to indemnify the water companies however remote is the possibility of any claims.

Schedule 1 to the regulations contains a model indemnity. As your Lordships would expect, the water industry would like a very wide indemnity. For public policy reasons we cannot cover criminal liability and the industry must bear the costs of any negligence. Notwithstanding that, we have gone as far as we can to meet the industry's concerns. The indemnity covers the defence costs of a water undertaker or supplier that successfully defends a prosecution for an offence which relates to the fluoridation of water. Moreover, provided there has been no fault or negligence, it
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covers any civil liability that arises in respect of fluoridation, even where that liability arises in circumstances which may also give rise to a criminal offence.

Hence Clause 2 of the schedule covers liabilities resulting from any criminal proceedings that might arise from fluoridation with the proviso that the proceedings have not led to a conviction. The industry accepts that we cannot indemnify water companies which have been found guilty of negligence.

Under Clause 4 the Secretary of State may assist a water company in defending a claim if he might incur liability under the indemnity. Likewise, under Clause 5, the Secretary of State may pursue claims on behalf of water companies. We envisage that if, contrary to any available evidence, a claim was made that fluoridation had adverse effects on general health, the Department of Health would take over the defence. The reason is that the claim would have implications for all the fluoridation schemes in the UK and the department would probably wish to submit evidence from its research programme on the effects of fluoridation and to call expert witnesses.

I hope my explanation of the regulations has been helpful and that noble Lords will be able to approve them. I beg to move.

Moved, That the draft regulations laid before the House on 22 February be approved [10th Report from the Joint Committee].—(Lord Warner.)

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