Water UK's legal adviser Richard Venters sets out the arrangements that became law this month as part of Water Act 2003.
1. On 20 November, the Water Bill received the Royal Assent to become the Water Act 2003. This contains important provisions relating to water abstraction, economic regulation, competition in water supply, and other significant amendments to the Water Industry Act 1991 and the Water Resources Act 1991.
2. However, out of an Act consisting of 104 sections and 9 schedules, the provision which has attracted the most attention is section 58 relating to the fluoridation of water supplies. It is therefore hoped that the following outline of the new section will be of assistance.
3. Contrary to the impression left by the press and others, this is not brand new legislation; what section 58 of the Water Act 2003 does is to modify the existing water fluoridation regime contained in Chapter IV of Part III of the Water Industry Act 1991.
4. In outline, what the new legislation does is as follows.
5. The final decision whether to fluoridate the water supply in a particular locality becomes the sole responsibility of the strategic health authority or authorities for the locality, or in Wales the responsibility of the Welsh Assembly; water companies will no longer have a discretion whether or not to accede to a request to fluoridate.
6. In return, the following further modifications are made to the existing statutory regime.
7. Before applying to a water company for fluoridation, the health authority or authorities must:-
(a) consult Ofwat, the water company and each other for the purpose of ensuring that the proposed scheme will be operable and efficient; and
(b) consult affected consumers for the purpose of ascertaining that they support the fluoridation of their water supply.
8. In this connection, the Department of Health and the Welsh Assembly are to make regulations setting out how the consultations with affected consumers and the water companies are to be undertaken, and how their views are to be taken into account.
9. Fluoridation schemes are required to be implemented in accordance with arrangements to be entered into between the health authority or authorities in question (or in Wales the Welsh Assembly) and the water company. Such arrangements must include provisions:-
(a) requiring the payment by the health authorities of the water company’s reasonable capital and operational costs;
(b) setting out the circumstances in which fluoridation may be suspended; and
(c) enabling the health authorities to request the variation of the arrangements.
10. If agreement cannot be reached on the terms of the arrangements or their variation, these are to be determined by the Secretary of State for Health, or in Wales by the Welsh Assembly, or by their nominees.
11. The new legislation additionally provides that, in the event of an exceptional lack of rain, accident, unforeseen circumstances, or for facilitating the carrying out works, fluoridated water may be supplied to areas not authorised to be fluoridated.
12. Water is to be fluoridated at the rate of one part per million, although this may be varied by order of the Secretary of State for Health in England or by the Welsh Assembly in Wales. Orders can be made for the whole of England or Wales, or for defined geographical areas. However, arrangements may provide for fluoridation at a lower rate if the health authority or Welsh Assembly does not consider that it is practicable to achieve the statutory concentration.
13. But crucially a water company cannot be required to fluoridate until it has been provided with an indemnity by the Secretary of State for Health against any liability that it may incur to third parties in connection with fluoridation. However, the scope of any indemnity that may be granted remains to be determined by regulations to be made by the Secretary of State.
14. Although these new provisions are now law, they will not be brought into force until regulations on the carrying out of consultations and the granting of indemnities have been made. It is understood that the former in particular will be subject to extensive consultation. It therefore seems unlikely that these new provisions will be implemented for at least six months.
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