With the Steering Committee operating by majority voting we might find that our preferred legal case is overruled. Yes we could exercise a "veto" of sorts by refusing to sanction expenditures (which require unanimity) but this would only serve to grind matters to a halt, which suits nobody.
We have not seen any documents at all other than the preliminary Opinion from Rhoderi Thompson QC, which is out of date and does not suggest that he favours running our Article 95 point.
So for all we know, it is very possible that the case they propose to run would be different from the one we would wish to advance and thus for example whilst we thought we were on a train to Paris it could be the case that in fact it was destined for Berlin.
Indeed we were somewhat concerned that this may well be a real possibility. After the meeting last week we came across a document in our files which was a draft letter from the HFMA seeking support to "block the Statutory Instrument" which was going to be implementing the Food Supplements Directive.
More specifically it stated that they would be seeking to have the relevant Minister:
"...work for an amendment to the Directive to allow the UK to continue to permit onto its domestic market those safe supplements that would otherwise be left outside the provisions of the Directive."
Our concern was that if this reflected the scope of the HFMA's proposed legal challenge, it did not go far enough. We (and more particularly our supporters) wanted to invalidate altogether that part of the Directive, which imposed a ban on non positive-list ingredients.
Thus if it turned out that after we had signed the Heads of Agreement and paid our money and ceded control; the case prepared by the NAHS / HFMA was different and not one we would wish to run, there would be little we could do.
That was a risk we were being strongly advised by our lawyers that we simply could not run.
Accordingly we needed to look at this aspect again and see if there was any way we have better knowledge of what their case was before we committed irrevocably to join it.
Financial Discrepancy Point
On returning to his office after our meeting Jeremy Arbib came across an NAHS leaflet, which had been put by out by them at the Harrogate Trade Show.
It stated as regards funding for the NAHS Food Supplements Directive judicial review challenge:
"...We are now back onto the FSD (having obtained a Qualified Opinion in December 2002) and will shortly placing our application before the court.
We do not need any more money to complete this stage of the process. However, if we are successful, and we are given leave to proceed with the challenge- we will need a LOT more money spread over a 2-year period! Again, if successful, 100% of all donations will be returned..."
We were concerned that this statement did not appear to be consistent with what Andrew Lockley had told us in Nuneaton.
He said that £50,000 would be needed for the first phase of the FSD challenge.
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