Imperial Tobacco Ltd v The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hope,Lord Walker,Lady Hale,Lord Kerr,Lord Sumption |
| Judgment Date | 12 December 2012 |
| Neutral Citation | [2012] UKSC 61 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 9 |
| Date | 12 December 2012 |
[2012] UKSC 61
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Kerr
Lord Sumption
THE SUPREME COURT
Michaelmas Term
[2012] CSIH 0009
Appellant
Richard Keen QC
Brian J Gill
(Instructed by Pinsent Masons LLP)
Respondent
James Mure QC
Anna Poole QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
Intervener
(The Advocate General for Scotland)
Lord Wallace of Tankerness QC
Ailsa Carmichael QC
Jonathan Swift QC
(Instructed by Office of the Advocate General for Scotland)
Heard on 12 and 13 November 2012
Lord Hope (with whom Lord Walker, Lady Hale, Lord KerrandLord Sumptionagree)
The question in this appeal is whether sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 ("the 2010 Act") are outside the legislative competence of the Scottish Parliament. Section 28(1) of the Scotland Act 1998 ("the 1998 Act") provides that, subject to section 29, the Scottish Parliament may make laws, to be known as Acts of the Scottish Parliament. Section 29(1) provides that 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.
Five of the various rules that affect the legislative competence of the Parliament are in point in this case. Section 29(2)(b) provides that a provision is outside that competence so far as it relates to reserved matters, details of which are set out in Schedule 5. Section 29(2)(c) provides that a provision is outside competence if it is in breach of the restrictions in Schedule 4. Paragraph 1 of Schedule 4 to the 1998 Act provides that an Act of the Scottish Parliament cannot modify Article 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as it relates to freedom of trade. Paragraph 2 of Schedule 4 provides that an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. And section 29(4) provides that a provision which would otherwise not relate to reserved matters but 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.
According to its long title the 2010 Act makes provision, among other things, about the retailing of tobacco products. Chapter 1 of Part 1 of the Act is headed "Display, sale and purchase of tobacco products". Sections 1 and 9 are included within that Chapter. Section 1 prohibits the display of tobacco products in a place where tobacco products are offered for sale. Section 9 prohibits vending machines for the sale of tobacco products. The appellants, Imperial Tobacco Ltd, maintain that those sections are outside legislative competence because they relate to matters which are listed in Part II of Schedule 5 to the 1998 Act as reserved matters for the purposes of that Act, and that they should in any event be treated as relating to reserved matters as they make modifications to Scots criminal law as it applies to reserved matters. They further maintain that the sections modify the law on reserved matters, contrary to the prohibition in paragraph 2 of Schedule 4. They also maintained in the Court of Session that the sections are outside competence because they modify article 6 of the Acts of Union so far as they relate to freedom of trade. The bringing into force of the 2010 Act has been deferred until these challenges to the competence of these sections have been finally determined.
On 30 September 2010 the Lord Ordinary, Lord Bracadale, held that none of the appellants' challenges to the legislative competence of the Scottish Parliament to pass sections 1 and 9 of the 2010 Act were well founded, and he dismissed their petition for judicial review: [2010] CSOH 134, 2010 SLT 1203. On 2 February 2012 the First Division (Lord President Hamilton and Lords Reed and Brodie) dismissed the appellants' reclaiming motion against the Lord Ordinary's interlocutor: [2012] CSIH 9, 2012 SC 297. The appellants have now appealed to this court, but they departed from their challenge to the legislative competence of sections 1 and 9 under section 29(2)(c) of the 1998 Act read together with paragraph 1 of Schedule 4. Shortly before the hearing of the appeal they also departed from their challenge under section 29(4). The Advocate General did not appear in the Inner House, but he sought and was given permission to intervene in this appeal.
Thirteen years have elapsed since the Parliament met to conduct business for the first time on 2 July 1999. There have been a number of challenges to the legislative competence of Acts of the Scottish Parliament during this period. For example, section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which was the first Act of the Parliament, was challenged unsuccessfully on the ground that its provisions were incompatible with article 5(1)(e) of the European Convention on Human Rights and thus outside competence under section 29(2)(d) of the 1998 Act: A v Scottish Ministers 2002 SC (PC) 63. Legislation prohibiting mounted foxhunting was challenged unsuccessfully on the ground that it was contrary to the petitioners' Convention rights in Adams v Scottish Ministers 2004 SC 665 and Whaley v Lord Advocate [2007] UKHL 53, 2008 SC (HL) 107. An amendment to the Criminal Procedure (Scotland) Act 1995, which placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences, was challenged unsuccessfully on the ground that the restrictions were incompatible with the right to a fair trial under article 6 of the Convention in DS v HM Advocate [2007] UKPC 36, 2007 SC (PC) 1. Since then there have been two cases where challenges have been made on the ground that provisions fell to be treated as relating to reserved matters as they made modifications to Scots criminal law as it applied to reserved matters: Logan v Spiers [2008] HCJAC 61, 2010 JC 1; Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40. In those cases too the challenges were rejected. In AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, 2012 SC (UKSC) 122 one of the grounds of the unsuccessful challenge to the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was that its provisions were incompatible with the insurers' Convention rights under article 1 of the First Protocol. In Sinclair Collis Ltd v Lord Advocate [2012] CSIH 80 a challenge by a cigarette vending machine operator to section 9 of the 2010 Act on the ground that it was incompatible with its rights under that article and with article 34 of the Treaty on the Functioning of the European Union did not succeed either.
But, remarkably, this is the first case in which provisions of an Act of the Scottish Parliament have been challenged on the ground that they relate to specific reservations listed in Part II of Schedule 5 as reserved matters for the purposes of the 1998 Act. The scheme that Schedule 5 sets out lies at the heart of the devolution settlement. It contains a long and complicated list of reserved matters which, at first sight, might have been expected to give rise to frequent disputes which would require to be resolved by the courts. That this has not happened until now is due partly to the use of legislative consent motions passed by the Scottish Parliament to enable the UK Parliament to pass legislation on devolved issues relating to Scotland: see Martin v Most, para 4. But it is also due in no small measure to the care that is taken by officials within the Parliament to ensure that the provisions that the Scottish Parliament does enact are within competence.
The Bill in which sections 1 and 9 appear was accompanied on its introduction by a statement by the Presiding Officer under section 31 of the 1998 Act that in his view its provisions would be within the legislative competence of the Parliament, and it was submitted for Royal Assent under section 32 of the Scotland Act 1998 as no question had been raised about its legislative competence under section 33 of the Act by any of the Law Officers. But there is no presumption of legislative competence from the fact that an objection to the competence of these sections has not been raised by the Presiding Officer or any of the Law Officers: A v Scottish Ministers [2001] UKPC D5, 2002 SC (PC) 63, para 7. If an issue as to legislative competence is raised, it will be entirely a matter for the courts to determine.
The subject matter of the provisions that are under scrutiny in this case is the control of smoking in the interests of public health. The appellants have made it clear throughout that, while they do not accept the validity or correctness of the evidence relating to smoking and health that was before the Scottish Parliament, they do not seek to challenge that evidence in these proceedings. Nor is their challenge brought, as was done in AXA General Insurance Ltd v Lord Advocate, on the ground that the provisions in question are open to review on common law grounds as an unreasonable, irrational and arbitrary exercise of the Parliament's legislative authority. The only question is whether any of the particular rules that were laid down in the 1998 Act by which it is to be determined whether or not a provision is outside legislative competence have been breached.
That is not to say that the question is easy to answer or unimportant. But the exercise that has to be carried out is essentially one of statutory construction. The answer to the question is to be found by construing the words used by the 1998 Act and examining the...
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