Analysis of Legal Methods - Term Paper Example

? Legal Methods Material Facts of the Case   The material fact in the case encompasses a decision by Strathclyde Council on September 13, 1978 to cooperate with local Health Boards in fluoridating water supplies. The petitioner (Mrs Catherine McColl) applied to interdict and restrain Strathclyde Regional Council from executing its decision. Mrs McColl’s submission detailed that fluoridation is unsafe, ineffective, and illegal. The Council held that fluoridating water supplies will aid in reducing dental decay. Mrs McColl, the petitioner, sought to establish that fluoridation would have several unfavourable side effects such as causation of cancer and that it would be ineffective in minimizing dental decay (Murray, Rugg-Gunn and Jenkins 1991, p.349). The petitioner also held that, in any event, Strathclyde Regional Council did not have the legal power to fluoridate its water supplies. [# 2] The Ground(s) on which the petitioner alleged that the Council’s decision was ultra vires    Mrs McColl had petitioned that fluoridation of the water supplies would be ultra vires the respondents (Strathclyde Regional Council), a nuisance, and thus illegal. The petitioner also claimed that fluoridation was a breach of the Water (Scotland) Act 1980 and a violation of the Medicines Act 1968. McColl claimed that adding fluoride to the water supply system was out with Strathclyde Regional Council powers. The Council did not have explicit powers on the issue of wholesomeness of the water. However, the Regional Council argued that it was in essence rendering the water more wholesome by righting a deficiency in fluoride, which results to caries. [# 3] Lord Jauncey’s Response to the Petitioner’s Arguments on the ultra vires  Any decision that can be considered to have not been taken in a lawfully permitted manner is considered to be ultra vires. The judge repelled specifically and in details all of Mrs McColl assertions that fluoride was medically unsafe, excluding that of ultra vires. The judge concluded that the decision making body (Strathclyde Regional Council) acted in excess of its powers. Strathclyde Regional Council duty to provide wholesome water did not entail power to add fluoride to water. The judge also quoted the water (Scotland) Act 1980 to establish that the law obligated the provision of “wholesome water” by the Regional Council (Henriques and Winter 2002, p.143). Beyond this requirement, though, “statutory provisions were nonexistent, which could be reasonably construed as advocating the improvement of the general health of the water consumers.” Hence, the council was acting beyond its powers hinged on whether the addition of fluoride was necessary to make the water wholesome (contrary to making the water unwholesome). In his verdict, the judge declared that fluoridation for the purpose of minimizing the occurrence of dental decay was ultra-vires the respondent (Murray, Rugg-Gunn, and Jenkins 1991, p.350). Lord Jauncey granted the interdict on this point alone. Lord Jauncey also stated that it was improbable that parliament would have sought to award a water authority the authority to enhance “the health of the water consumers,” especially since water fluoridation would “incorporate a violation of individual rights” (Yiamouyiannis 1983, p.162). [# 4] Techniques of Precedent Utilized in McColl v. Strathclyde Regional Council Lord Jauncey’s 400-page judgement featured the medical evidence for or against water fluoridation, except for a few pages dealing with legal issues evident in the case. Prior to 1985, there was no explicit statutory basis for water fluoridation in the UK, although some water fluoridation schemes were present at the time. In forming his verdict, the judge reviewed other similar cases, especially that of Lower Butt, New Zealand, even though their findings were not necessarily binding (Wright 2009, p.183). Jauncey judgement examining sources of authority on the subject of wholesome water was not in depth, as the judge could not find directly relevant precedent. Thus, the judge was free to rule on how “wholesome” water should be interpreted as was argued by the petitioner. The judge concluded that water fluoridation was indeed outwith the powers of Strathclyde Regional Council (Stair 1990, p.124). The overall conclusion of Lord Jauncey was that there was no evidence suggesting that fluoride at the proposed concentration would result to unfavourable effect upon the health of the consumers. The judge upheld the effectiveness of water fluoridation and found that water fluoridation can significantly minimize the occurrence of caries. On the legal grounds, the judge’s verdict went against the petitioner’s assertions that water fluoridation comprised a nuisance and a breach of Section 8 of Water (Scotland) Act, and the Medicines Act 1968 (Reid and Zimmermann 2000, p.473). The judge stated in his analysis of the evidence that it was inaccurate to conclude that low levels of fluoride in the water “caused” caries. Whereas addition of extra fluoride in the water might indeed minimize caries rates, it was probable that people may as well obtain enough fluoride from other sources; thus, it would be incorrect to state that water fluoridation corrected a deficiency in the water. [# 5] Approaches and/or Aids to Interpretation Relied upon by Lord Jauncey Lord Jauncey explicitly and implicitly relied heavily on the evidence delivered by the medical personnel from the fields of medical and science, inclusive of dental science, in shaping his opinion. Some of the approaches and/or aids to interpretation the Lord Jauncey and explicitly implicitly relied upon include authoritative studies based on the safety and/ or efficacy of water fluoridation. Some of the review that might have been critical to shaping the judge’s judgement includes reports based on studies, which indicated that the fluoridation of domestic water supplies is critical to controlling dental caries (Halliday 2004, p.138). The information was critical in vindicating the safety and the efficacy of fluoridation. Certain reports suggest that Lord Jauncey gave an opinion centring on the ethics of fluoridation in which he concluded that this measure is a violation of personal rights. Water fluoridation is a matter of fact and not opinion. Any individual has minimal preference, but to ingest the fluoridated water is undoubtedly a limit of the freedom of choice. In a statement, the judge stated “a person’s right to decide how to care for his or her own body should only be infringed upon by statutory provisions in a concise and unambiguous language.” Mrs McColl success in her pursuit of being granted an interdict to restrain Strathclyde Regional Council is perceived as a victory for personal liberty over the Strathclyde Regional Council (Buck 1998, p.225). Since there was no evidence pointing that fluoridation would have an undesirable effect on health, Mrs McColl’s plea that fluoridation was a nuisance failed. In addition, the fact that fluoridation did not suggest the delivery of a medicinal product as espoused by the Medicines Act 1968, Lord Jauncey upheld that products licence was unnecessary, thus Mrs McColl’s plea that fluoridation amounted to a contravention of the Medicines Act 1968 was repelled (Wright 2009, p.184). [# 6]  Addition of beneficial additives to public water supplies 1. (A) Subject to Water (Scotland) Act 1980 and regulations, and if advised or requested in writing by a relevant authority, the Local Authority shall enter into arrangements to add beneficial additives to any water supply under its jurisdiction. The Local Authority shall not be authorized to add beneficial additives to water supplies under its jurisdiction if at a poll conducted pursuant to the decision garners greater votes against, compared to votes in support of the addition of beneficial additives to the public water supplies in question. (B) No provision of any other Act or regulation shall apply so as to prejudice or constrain in any manner the authority vested upon a Local Authority by the Act. A Local Authority shall not add beneficial additives to any of its water supplies with the exception of the approval of or on the advice of the relevant authorities. (C) A Local Authority shall not, under any conditions, add to any public water supply under its jurisdiction beneficial additives in any form other than that stipulated by the regulations. 2. In an event that a Local Authority adds to any water supply under its jurisdiction beneficial additives, the Local Authority shall not— (A) At any time or circumstance add to such public water supply beneficial additives in public water supply to a concentration beyond the tolerance levels prescribed by the regulations, and (B) Shall at all times uphold the content of beneficial additives in such public water supply at a concentration of not more than the upper limit or less than the lowest concentration approved by the regulations, and (C) Shall in all other respects, besides the addition of beneficial additives, conform to the set regulations. 3. A person, who is not a water supply authority, shall not add beneficial additives to any public water supply. Any person who contravenes or fails to obey any of the clauses of this section or any of the conditions accompanying approval granted under the provisions of this Section shall be guilty of an offence. [#7] Reasons for Refusal to Grant Legal Aid Probabilis causa litigandi This case revolves around legal justification for adding faunaride to the Council’s water supplies, especially on the legality of Strathbungo City Council to add faunaride to their water supply from Loch Katrine in order to benefit the health of the area’s elderly residents. Using McColl v. Strathclyde Regional Council 1983 SLT 616 case as a precedent, the chances of being granted an interdict are slim, especially after amendment of Water (Scotland) Act 1985 that made water fluoridation permissible at the request of health authorities. In this case, the judge commented “in 90% percent of her submission McColl failed significantly.” Although Mrs McColl was successful in obtaining an interdict to restrain Strathclyde Regional Council, it would be unreasonable to think that this was a body blow to fluoridation. In reality, Lord Jauncey’s findings constituted an unequivocal vindication of the safety and efficacy of water fluoridation. There are strong tenets that hinge on whether the practice of adding fluoride (in this case faunaride) to water supplies amounts to medication and whether it is to be considered that faunaride constitutes medicine. It is clear from McColl v. Strathclyde Regional Council 1983 SLT 616 judge decision, adding faunaride would not constitute medication, as it pursues to enhance the health of the area’s elderly residents (Genn and Paterson 2001, p.3). In the case, Mrs McColl argued that water fluoridation was illegal based on four reasons; it constituted a nuisance, and it would breach Section 8 of the water (Scotland) Act 1980, it would breach the Medicines Act 1968, and lastly, it was ultra vires, or outwith the remit of the council. Basing on the case McColl v. Strathclyde Regional Council 1983 SLT 616, the plaintiffs claim that adding faunaride to water supplies amounts to nuisance is likely to be dismissed. This is certainly possible as there may not be any evidence suggesting the faunaride at the proposed concentrations would be unfavourable to health. Moreover, faunaride occurs naturally in water, and if consumed in sufficient concentrations by human beings, it safeguards against the ill effects of ageing. As it follows, Walter Wrinkly and Carol Crumbly case on nuisance will most likely fail. The claim that adding faunaride would breach Section 8 of the Water (Scotland) Act centres on the issue of wholesomeness. Under Section 8 of the Water (Scotland) Act 1980, Strathbungo City Council has a duty to provide a wholesome supply of water to the residents (Pine and Harris 2007, p.409). In this case, Walter Wrinkly and Carol Crumbly may claim that water enriched with faunaride is not wholesome. The petitioners may claim that the defenders (Strathbungo City Council) accordingly failed in their duty. A breach of the statutory provision would only occur if the water supplied by the Strathbungo City Council in their mains and communication pipes were made unwholesome by the addition of faunaride. Given the evidence of scientists in their discovery of the compound, which indicates that faunaride occurs naturally in water, it means that faunaride in controlled concentrations cannot be regarded as harmful. In addition, the compound adds a benefit to the health of the consumer consequent upon drinking water in its natural state. Thus, it follows that faunaride must be wholesome. So it is likely that such an argument will fail. It can fairly be argued that refusal to award legal aid is based on the fact that Walter Wrinkly and Carol Crumbly do not have a reasonable case to raise or defend (European Commission for the Efficiency of Justice 2008, p.53). There is a probability that the petitioners will have to pay crippling expense should they lose. Section 14(1) (b) of the Legal Aid (Scotland) Act 1986 demands satisfaction; this means that it is reasonable in the exact conditions of the case that the applicant should be awarded civil legal aid. It is appropriate to assess the prospects of success in the consideration of reasonableness of granting legal aid. This is grounded in an unsuccessful litigation based on a similar case. It is unreasonable to grant legal aid to Walter Wrinkly and Carol Crumbly because their application to interdict the addition of faunaride to the water is premature. It is unreasonable to make legal aid available in situations where no satisfactory effort has been made to decide a dispute before litigation (Andrews 1982, p.133). Moreover, Walter Wrinkly and Carol Crumbly application encompasses public interest. It may be unreasonable to avail legal aid to applicants to sue, at taxpayers’ expense, in matters conspicuously not exclusive to themselves. McColl v. Strathclyde Regional Council 1983 SLT 616 case is notable for its length. The court sat for 201 days, making it the longest and most expensive case in Scottish legal history. Borrowing a cue from McColl v. Strathclyde Regional Council 1983 SLT 616, it is probable that the case will be lengthy and costly. In balancing the cost of the litigation, the probable benefit to the petitioners and the slim chances of success, there is no justifiable reason as to involve heavy expenditure of public funds (Del Carmen and Valker 2012, p.56). Therefore, legal aid cannot be granted as it does meet cost benefit analysis. References List Andrews, J. (1982). Human rights in criminal procedure: A comparative study, Dordrecht, Kluwer Boston. Buck, T. (1998). Judicial review and social welfare, London, Casell. Del Carmen, R. & Valker, J. (2012). Briefs of leading cases in Law enforcement, Waltham, Anderson. European Commission for the Efficiency of Justice (2008). European Judicial Systems: Edition 208 (data 2006): Efficiency and quality of justice, Strasbourg, Council of Europe. Genn, H. & Paterson, A. (2001). Paths to justice Scotland: What people in Scotland do and think about going, Oregon, Hart. Halliday, S. (2004). Judicial review and compliance with administrative law, Oregon, Hart. Henriques, J. & Winter, R. (2002). Henriques & Winter on Local Authority prosecutions, London, Cavendish. Murray, J., Rugg-Gunn, A. & Jenkins, G. (1991). Fluorides in caries prevention, Waltham, Butterworth-Heinemann. Pine, C. & Harris, R. (2007). Community oral health, Detroit, Quintessence. Reid, K. & Zimmermann, R. (2000). A history of private Law in Scotland: Introduction and property, Oxford, Oxford University Press. Stair, J. (1990). The Laws of Scotland: Stair memorial encyclopaedia, Volume 19, Edinburg, Law Society of Scotland. Wright, P. (2009). A journey through ruins: The last days of London, Oxford, Oxford University Press. Yiamouyiannis, J. (1983). Fluoride, the aging factor, Detroit, Health Action Press. Read More