Petition Of Imperial Tobacco Limited For Judicial Review Of Sections 1 And 9 Of The Tobacco And Primary Medical Services (scotland) Act 2010
| Jurisdiction | Scotland |
| Judge | Lord Bracadale |
| Judgment Date | 2010 |
| Neutral Citation | [2010] CSOH 134 |
| Date | 30 September 2010 |
| Court | Court of Session |
| Published date | 29 September 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 134 | |
| OPINION OF LORD BRACADALE in the Petition IMPERIAL TOBACCO LIMITED Petitioner; For Judicial Review of sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 ________________ |
Petitioner: Jones Q.C., Gill, Advocate; McGrigors Solicitors LLP
Respondent: Mure Q.C., Poole; C Mullin
30 September 2010
Introduction: The Tobacco & Primary Medical Services (Scotland) Act 2010
[1] On 27 January 2010 the Scottish Parliament passed the Tobacco & Primary Medical Services (Scotland) Act 2010 (the 2010 Act). The 2010 Act, which was introduced as an Executive bill on 25 February 2009, received the royal assent on 3 March 2010. Part I makes provision with respect to tobacco products and Part 2 to primary medical services. Included in Part 1 are provisions designed to prohibit the display of tobacco products at point of sale and the use of vending machines to sell tobacco products. Section 1, so far as material for present purposes, provides:
"(1) A person who in the course of business displays or causes to be displayed tobacco products or smoking related products in a place where tobacco products are offered for sale commits an offence."
Section 9, so far as material for present purposes, provides:
"(1) A person who has management or control of premises on which a vending machine is available for use commits an offence...
(3) In this section "vending machine" means an automatic machine for the sale of tobacco products (regardless of whether the machine also sells other products)."
No commencement order in respect of that part of the Act which includes sections 1 and 9 has yet been made. The United Kingdom government is introducing similar legislation in England and Wales; I was informed that the intention was to bring the provisions into force at the same time.
[2] The petitioner, which is engaged in the manufacture, marketing and sale of tobacco products, including well known brands of cigarettes, seeks (a) declarator that sections 1 and 9 of the 2010 Act are outside the legislative competence of the Scottish Parliament and therefore are not law; and (b) reduction of each of sections 1 and 9. The petition was served on the Lord Advocate and the Advocate General, each of whom lodged answers. At the beginning of the hearing the Advocate General withdrew from the process. I shall refer to the Lord Advocate as the respondent.
[3] The Scottish Parliament, which first met in 1999, was established by section 1 of the Scotland Act 1998 (the Scotland Act). The Scotland Act has been judicially recognised as a constitutional statute. In R v HM Advocate 2002 S.C.(P.C.) 21 at p 60, para 16, Lord Rodger of Earlsferry described it as "a major constitutional measure which altered the government of the United Kingdom"; and, later, at p 73, para 50, he referred to the Act as "a constitutional settlement of immense social and political significance for the whole of the United Kingdom". In Sommerville v Scottish Ministers 2007 S.C.140 at para 47 the Scotland Act was characterised by the Lord President as being a constitutional instrument. In Thoburn v Sunderland City Council 2003 Q.B.151 Laws L.J. included the Scotland Act in a list of examples of constitutional statutes and, at p 186, described constitutional statutes in the following manner:
"We should recognise a hierarchy of Acts of Parliament: as it were 'ordinary' statutes and 'constitutional' statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, over-arching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights".
In support of the contention that constitutional statutes should be interpreted generously and purposively, counsel for the respondent referred to Robinson v The Secretary of State for Northern Ireland 2002 NIR 390. At para 11 Lord Bingham, after noting that the Northern Ireland Act 1998 was in effect a constitution, went on to say:
"So to categorise the 1998 Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody".
I accept that the Scotland Act should be interpreted in this way. The court should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable. This informs my approach to the issues raised in this petition. [4] Section 28 of the Scotland Act provides that the Scottish Parliament may make laws to be known as Acts of the Scottish Parliament. Provision is made for them to receive the royal assent. The power of the UK Parliament to make laws for Scotland is not affected by the provisions of the Scotland Act. Section 29 restricts the power of the Scottish Parliament to make laws. Section 29(1) provides:-
"An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament."
Subsection (2) provides the circumstances in which a provision is outside that competence. The relevant paragraphs in the subsection for present purposes are (b) and (c), which provide:-
"(b) It relates to reserved matters,
(c) It is in breach of the restrictions in schedule 4..."
Subsections (3) and (4) provide as follows:-
"(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
(4) A provision which -
(a) would otherwise not relate to reserved matters, but
(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,
is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise."
[5] The scheme of the Scotland Act is to reserve certain matters to the UK Parliament, all other matters being devolved; no reference is made in the Act to "devolved matters". Section 30 provides that schedule 5 (which defines reserved matters) shall have effect. Schedule 4 prohibits modification of certain enactments and modification, in certain circumstances, of the law on reserved matters.
[6] It has been recognised that the scheme of devolution means that it is not possible for reserved and devolved areas to be divided into precisely defined, watertight compartments. Some degree of overlap will be inevitable (Martin v HM Advocate 2010 SLT 412: Lord Hope of Craighead at para 11.)
[7] The Tobacco Advertising and Promotion Act 2002 (the 2002 Act), which currently applies to advertising and display of tobacco products, was extended to Scotland by the use of a legislative consent motion, or "Sewell" motion, by which the Scottish Parliament agreed that the UK Parliament would pass legislation on a devolved issue extending to Scotland. Counsel for the respondent explained that while it would have been open to the Scottish government, given that the UK Parliament was introducing similar legislation for England and Wales, to have used a Sewell motion on this occasion also, in the event, the Scottish government had chosen to introduce a bill which had, in due course, been passed by the Scottish Parliament.
The Petitioner's challenges
[8] The petitioner mounted a number of challenges to the legislative competence of the Scottish Parliament to pass sections 1 and 9 of the 2010 Act: (a) in terms of section 29(2)(b) and (3) these provisions related to reserved matters; (b) if they did not otherwise relate to reserved matters they were deemed to do so by virtue of subsection (4) of section 29; (c) in terms of section 29(2)(c) and schedule 4 paragraph 2 they modified a rule of Scots criminal law special to a reserved matter; and (d) in terms of schedule 4 paragraph 1 they modified article VI of the Acts of Union 1706 and 1707 (the Acts of Union) so far as that article related to freedom of trade. It was accepted by the respondent that success for the petitioner on any one basis would result in the provisions being outside the legislative competence of the Scottish Parliament.
The case of Martin v HM Advocate
[9] Some of the challenges mounted by the petitioner in this case were considered by the Supreme Court in Martin v HM Advocate 2010 SLT 412, where they gave rise to some difference of view. The question arose as to whether the increase in the sentencing power of a sheriff sitting summarily provided by section 45 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 (the 2007 Act) was outside the legislative competence of the Scottish Parliament. The justices of the Supreme Court were unanimous in holding that the purpose of the provision was not related to a reserved matter in terms of section 29(2)(b) and (3) of the Scotland Act. Although different views were expressed about the application of section 29(4), the justices were unanimous in holding that section 45 of the 2007 Act was not deemed to be so related in terms of that subsection. A majority, Lords Rodger and Kerr dissenting, held that the provision did not modify a rule of Scots criminal law special to a reserved matter in terms of section 29(2)(c) and schedule 4 paragraph 2.
The construction of section C7(a) of schedule 5 to the Scotland Act
Introduction
[10]...
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