1) this is a decision made in bad faith by an agency funded by big pharma. See MP Paul Flynn's blog
paulflynnmp.typepad.com/my_weblog/2012/01/mhra-self-regulation-no-regulation.html2) the decision goes beyond the powers of the MHRA, unless nicotine has been reclassified as a medicinal product (much as big pharma might wish this true, it's not), making it ultra vires and not enforceable
five minute legal brief:
If there are enough people that want to challenge this decision, it is possible, but it would need to be done quickly.
Where a government decision has been made and not yet implemented, judicial review can be considered. This is a ‘discretionary remedy’: permission is not automatic even if a government decision is obviously flawed. Permission comes from the High Court.
The process is two staged, first stage is obtaining permission. The second stage is the decision. Sometimes the two can be combined in one hearing for urgent cases only (unlikely in this case). There is an absolute three month time limit for cases to be brought and action must be taken ‘promptly’. High court refusal can be given on the basis of failure to act promptly even within the three month time limit.
This is a specialist case and likely to be expensive. Even if sucessful, the legal costs are likely to be high.
A good judicial review lawyer would find a specific decision to challenge within the time limit. There will have to be enabling legislation to follow today’s announcement by the MHRA and therefore several points at which a legal challenge might be made. But the longer this is left, the harder it becomes.
Government decisions can often be challenged on the basis of:
· failing to take something relevant into account
· taking something irrelevant into account
· authorities misunderstanding or overstepping their legal powers
· bad faith (misuse of legislation for inappropriate legislation etc)
· ‘Wednesbury unreasonableness’ (decisions unreasonable enough that no decision maker properly directing themselves about the law could have come to that decision, ie the decision is outside the possible boundaries of reasonable decision making)
The last two are hard to prove, but included in legal challenges where appropriate. The solicitor stage might be bypassed (in the interests of speed and cost), but you would have to be able to comply with the Direct Professional Access rules. A specialist barristers’ chambers would be able to advise.
To recap on the main three points: this would be a costly process, involve specialists and would need to be done quickly.
but signed the other one. Will try to get others to as well.
