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Wednesbury Unreasonable?!

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Wednesbury Unreasonable?!

Postby Hairyloon » Wed Feb 14, 2018 6:39 pm

If the government ignored a generally negative assessment of the impact of Brexit on the UK’s economy, or obtained no assessments the decision would arguably be open to challenge on the basis of the administrative law principle that a person or body having authority or discretion to take a certain course of action or to act in a certain way must, in exercising that discretion, act reasonably within the meaning of Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

https://drive.google.com/file/d/125e_2E ... gt7Yt/view

That is surely grasping at straws?
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Re: Wednesbury Unreasonable?!

Postby dls » Fri Feb 16, 2018 10:15 am

There is a real difficulty of structure here.

The government is not heading directly to a decision. It is going via a negotiation which in all likelihood will swamp in significance any purported 'decision' to pursue this or that objective.

For myself, I hear a lot of peple suggesting that the British did not vote for a worsening of economic conditions. This is a cheap and demeaning argument. I think it perfectly reasonable to assume that many voted on the basis that a reduction in wealth was a price worth paying for the regaining of independence. Leaving the EU iwas not a decision based solely upon immigraion, or upon independence, or upon economics.

If one thing has becoe lear, it is that the UK treasury's (and others') ability to forecast the economic is about zero. Spending millions to obtain further worthless predictions and models is itself possibly quite irrational.
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Re: Wednesbury Unreasonable?!

Postby Hairyloon » Fri Feb 16, 2018 10:34 am

dls wrote:There is a real difficulty of structure here.

The government is not heading directly to a decision. It is going via a negotiation which in all likelihood will swamp in significance any purported 'decision' to pursue this or that objective...

I had understood that the decision it refers to is the decision to leave the EU. As far as I can tell, that decision was made by David Cameron and they are surely well out of time for any kind of judicial review of it.
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Re: Wednesbury Unreasonable?!

Postby dls » Fri Feb 16, 2018 11:39 am

David Cameron made a terrible mistake putting it to teh people, but teh decision was made on the votes cast.
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Re: Wednesbury Unreasonable?!

Postby Hairyloon » Fri Feb 16, 2018 12:03 pm

dls wrote:David Cameron made a terrible mistake putting it to teh people, but teh decision was made on the votes cast.

On, but not by, and by Cameron, but not parliament.
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Re: Wednesbury Unreasonable?!

Postby dls » Fri Feb 16, 2018 4:49 pm

I agree that but for the decisions first of Cameron and then, but for the decision of Parliament, the question would not have been put to the people. What was put to the people was a question. Parliament abrogated its own responsibility and delegated its decision to the people. The people made the decision.
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Re: Wednesbury Unreasonable?!

Postby Hairyloon » Sat Feb 17, 2018 1:26 am

dls wrote:Parliament abrogated its own responsibility and delegated its decision to the people. The people made the decision.

Except that they did not. Check the debates in Hansard, the parliamentary briefing paper, the Lords report and the Miller judgment: the referendum was not set up as a decision and cannot be treated as one.
The decision, and the responsibility for that decision needs to be taken by parliament.

You can argue that Cameron's promise means we should set aside the fundamental constitutional principles of representative democracy, but such an argument is unlikely to hold water... although it does appear to have persuaded parliament.
A better argument might be that parliament are obliged to follow the result because to do otherwise would be undemocratic.
That might be true if that was what the electorate expected to happen when they voted: clearly that is the case for a number of individuals.
But if I might borrow words from Edmund Burke, authoritative instructions which the member is bound blindly and implicitly to obey are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

Should we presume that the electorate is unaware of these fundamental constitutional principles? Or that they have put them aside because they trust so completely the word of the Prime Minister?
Or did they cast their vote with these principles in mind?

Prior to the referendum, parliament was abundantly clear that leaving the EU was contrary to their clearest conviction of judgment and conscience. A vote against that conviction should give them cause to examine their conscience carefully, but most members have not done this, they have taken the vote as an authoritative instruction and blindly obeyed it.

Coming back to OP though, I have had second thoughts.
Perhaps the decision in question is not the decision to leave the EU, but to submit the Article 50 notice before anybody had the faintest clue what we were seeking to accomplish.
The *only* reason I know of to do it so soon is in order to be out of the EU before the anti tax avoidance measures come into play. While that is clearly a good reason for the people who are calling the tune, I am not aware of any reason that would hold water with the wider public.
I do not claim to have exhaustively researched the point.
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