Imperial Tobacco Limited V. The Lord Advocate As Representing The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord President,Lord Reed |
| Neutral Citation | [2012] CSIH 9 |
| Court | Court of Session |
| Published date | 02 February 2012 |
| Docket Number | P326/10 |
| Date | 02 February 2012 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Reed Lord Brodie | [2012] CSIH 9 P326/10 OPINION OF THE LORD PRESIDENT in Reclaiming Motion by IMPERIAL TOBACCO LTD Petitioner and Reclaimer; against THE LORD ADVOCATE, AS REPRESENTING THE SCOTTISH MINISTERS First Respondent: _______ |
Act: Jones, Q.C., Gill; McGrigors LLP
Alt: Mure, Q.C., Poole; Scottish Government Legal Directorate
2 February 2012
The issue
[1] The issue for resolution in this reclaiming motion is whether sections 1(1) and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 are outside the legislative competence of the Scottish Parliament and accordingly not law (Scotland Act 1998, section 29(1)). The reclaimer maintains that each of these provisions is outside such competence, the challenge being advanced on a number of distinct bases. In the discussion before us it was not suggested on either hand that different answers might be given in respect of the two provisions of the 2010 Act; they stand or fall together. These provisions are:
"1(1) A person who in the course of a 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.
...
9(1) A person who has the management or control of premises on which a vending machine is available for use commits an offence.
...".
By section 9(3) a "vending machine" is defined as meaning an automatic machine for the sale of tobacco products (regardless of whether the machine also sells other products). "Tobacco product" and "smoking related products" are defined respectively by sections 35(1) and 35(2) of the Act.
The Scotland Act
[2] Section 29 of the Scotland Act further provides:
"(2) A provision is outside that competence so far as any of the following paragraphs apply -
...
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
...
(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."
[3] The restrictions in Schedule 4 include the following:
"1(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any of the following provisions.
(2) The provisions are -
(a) Articles 4 and 6 of the Union with Scotland Act 1706 and the Union with England Act 1707 so far as they relate to freedom of trade,
...
2(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.
(2) In this paragraph, 'the law on reserved matters' means -
(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and
(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter,
...
(3) Subparagraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter ...".
[4] Section 30(1) of the Scotland Act provides that Schedule 5 (which defines reserved matters) shall have effect. The structure of Schedule 5 is to list under Parts, Heads and Sections what are reserved matters. There is no parallel list of devolved matters. What is not reserved is devolved. Part II of Schedule 5 is concerned with specific reservations, paragraph 1 of that Part providing that the matters to which any of the Sections of that Part apply are reserved matters for the purposes of the Act. Head C is headed "Trade and Industry". Within it are two Sections of potential relevance. Section C7 (headed "C.7 Consumer protection") is in the following terms:
"Regulation of -
(a) the sale and supply of goods and services to consumers,
(b) guarantees in relation to such goods and services,
(c) hire-purchase, including the subject-matter of Part III of the Hire Purchase Act 1964,
(d) trade descriptions, except in relation to food,
(e) misleading and comparative advertising, except regulation specifically in relation to food, tobacco and tobacco products,
(f) price indications,
(g) trading stamps,
(h) auctions and mock auctions of goods and services, and
(i) hallmarking and gun barrel proofing.
Safety of, and liability for, services supplied to consumers.
The subject-matter of -
(a) the Hearing Aid Council Act 1968,
(b) the Unsolicited Goods and Services Acts 1971 and 1975,
(c) Parts I to III and XI of the Fair Trading Act 1973,
(d) the Consumer Credit Act 1974,
(e) the Estate Agents Act 1979,
(f) the Timeshare Act 1992,
(g) the Package Travel, Package Holidays and Package Tours Regulations 1992, and
(h) the Commercial Agents (Council Directive) Regulations 1993.
Exception
The subject-matter of section 16 of the Food Safety Act 1990 (food safety and consumer protection)."
[5] Section C8 (headed "C.8 Product standards, safety and liability") is in the following terms:
"Technical standards and requirements in relation to products in pursuance of an obligation under Community law.
Product safety and liability.
Product labelling.
Exceptions
Food, agricultural and horticultural produce, fish and fish products, seeds, animal feeding stuffs, fertilisers and pesticides.
In relation to food safety, materials which come into contact with food."
The statutory objectives
[6] The objectives (immediate and ultimate) of sections 1(1) and 9 of the 2010 Act are not in doubt. Section 1(1) is designed, by imposing a criminal sanction, to prevent, subject to a limited exception (section 1(2)), the display of tobacco products or smoking related products in a place where tobacco products are offered for sale. Such display is conceived to encourage the purchase of such products. As the consumption, particularly by smoking, of such products is believed to be adverse to health, section 1(1) is designed to inhibit, without prohibiting, their purchase. Section 9 is concerned with a different but related problem - the ready access by children and young persons to tobacco products by way of automatic vending machines. Such ready access is conceived to be harmful, as it facilitates the acquisition and ultimate smoking, by children and young persons, of tobacco products. Section 9 is designed, again by a criminal sanction, to prevent children and young people, as well as other persons, from having such ready access to tobacco products. The risk which the smoking of tobacco products is perceived to present is to health, primarily of the smokers as consumers but also of those non-smokers who may be exposed to a smoke-filled environment and, by "passive smoking", suffer adverse affection.
Schedule 5 - construction
[7] Mr Jones for the reclaimer submitted that the "natural home" for the provisions of the 2010 Act was in Section C7, and in particular Section C7(a) of Schedule 5 to the Scotland Act. Section C7 can be described as falling into four parts: first, the regulation of certain matters, identified under the letters (a) to (i), second, "Safety of, and liability for, services supplied to consumers"; third, the subject-matter of certain statutes identified under letters (a) to (h) and, fourth, the stated exception - "The subject-matter of section 16 of the Food Safety Act 1990 (food safety and consumer protection)".
[8] The expression "Regulation of ... the sale and supply of goods and services to consumers" is open to interpretation. It could apply simply to the regulation of such matters in so far as they concern the contractual (or economic) interests of purchasers or acquirers or, on the other hand, it could extend to the safety consequences for consumers of goods and services sold or supplied. That the extended sense cannot be correct is, in my view, plain from the terms of the second part of Section C7. That provides expressly for the safety of services supplied to consumers. That provision, which pointedly relates only to services, would have been unnecessary if "Regulation of ... the sale and supply of goods and services to consumers" had been intended to encompass the safety of consumers to whom goods were sold or services supplied. Moreover, the first part of Section C7 itself, in my view, points to contractual (or economic) interests being the focus. The co-location of "the sale and supply of goods and services ..." with "guarantees in relation to ... goods and services", "hire-purchase", price indication (the subject matter of Part III of the Consumer Protection Act 1987), etc tends to suggest that contractual (or economic) interests are being addressed. The same is (largely, if not wholly) true of the statutory provisions mentioned in the third part of the Section. The canon of construction noscitur a sociis would appear to be in point. While, in the nature of the provisions in Schedule 5 a wholly logical taxonomy may be more than can be expected, the presumption must be for an orderly arrangement. In these circumstances I am unable to accept that Section C7(a) encompasses the safety of goods.
[9] I am not persuaded that the exception at the end of Section C7 points to a different conclusion. We were informed that the background to this provision was that, pre-devolution, the regulation-making power under section 16 of the 1990 Act, although entrusted collectively to "the...
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