The Scotch Whisky Association And Others For Judicial Review Of The Alcohol (minimum Pricing)(scotland) Act 2013 And Of Related Decisions
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2013] CSOH 70 |
| Year | 2012 |
| Published date | 03 May 2013 |
| Date | 03 May 2013 |
| Court | Court of Session |
| Docket Number | P762/12 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 70 | |
| P762/12 | OPINION OF LORD DOHERTY in the Petition of (1) THE SCOTCH WHISKY ASSOCIATION; (2) CONFEDERATION EUROPEENE DES PRODUCTEURS SPIRITEUX (also known as CEPS -' THE EUROPEAN SPIRITS ORGANISATION); (3) COMITE DE LA COMMUNAUTE ECONOMIQUE EUROPEENNE DES INDUSTRIES ET DU COMMERCE DES VINS, VINS AROMATISES, VINS MQUSSEUX, VINS DE LIQUEUR ET AUTRES PRODUITS DE LA VIGNE (also known as CEEV - COMITE EUROPEEN DES ENTERPRISES, VINS) Petitioners; For Judicial Review of the Alcohol (Minimum Pricing) (Scotland) Act 2012 and of related decisions ________________ |
Petitioners: O'Neill QC, M. Ross, Brodies LLP
First Respondent: Moynihan QC, Duncan QC, Scottish Government Legal Directorate
Second Respondent: Carmichael QC, J.N.M. MacGregor, Office of the Advocate General
3 May 2013
Introduction
Petition
[1] In this petition for judicial review the petitioners challenge the legality of an enactment of the Scottish Parliament - the Alcohol (Minimum Pricing) (Scotland) Act 2012 (asp 4) ("the Act"). They also challenge the legality of the Scottish Ministers' decision that they will make an Order ("the proposed Order") setting the minimum price at 50 pence per unit of alcohol.
[2] The Act amends the Licensing Scotland Act 2005 (asp 16). The amendments make provision for a minimum price per unit of alcohol being specified by Order of the Scottish Ministers, and for such an Order to be laid before the Scottish Parliament for approval by resolution. If the Act is brought into force the amended provisions inserted into the 2005 Act will prohibit the sale of alcohol on licensed premises at a price below its minimum price. In each case the minimum price for the drink offered for sale would be arrived at using the formula MPU x S x V x 100 (minimum price per unit x strength of the alcohol x volume in litres x 100). Thus, for example, with a minimum price of 50 pence per unit, a standard sized (75cl) bottle of wine with an alcohol strength of 12 % would have a the minimum price of £4.50 (£0.50 x 12% x 0.75 x 100). If the alcohol strength of the wine was 15% the minimum price would be £5.62 (£0.50 x 15% x 0.75 x 100).
[3] On 14 May 2012 the Cabinet Secretary for Health, Wellbeing and Cities Strategy announced that 50 pence per unit was the preferred minimum price for alcohol: a draft Order - The Alcohol (Minimum Price per Unit) (Scotland) Order 2013 - was prepared shortly thereafter. It specifies a minimum price of 50 pence per unit. As a consequence of the present challenge the Act has not yet been brought into force and the Order has not yet been made.
[4] The petitioners challenge the Act and the decision to set the minimum price at 50 pence per unit. They do so on several grounds.
[5] Until shortly prior to the first hearing one of those grounds was that the Act was outside the legislative competence of the Scottish Parliament, because, it was maintained, it related to reserved matters. In light of the decision and reasoning of the Supreme Court in Imperial Tobacco Ltd v Lord Advocate 2013 SLT 2 that ground was not insisted upon.
[6] The grounds which were advanced were (1) that the Act and the decision to set the minimum price at 50 pence per unit are in breach of the Acts of Union; (2) that the Act is outside the legislative competence of the Scottish Parliament and is not law because it purports to modify, or confer power to modify, Articles 4 and 6 so far as they relate to freedom of trade (s. 29(1),(2)(c) and Sched. 4, paragraphs 1(1), 1(2)(a); (3) that the Act is outside the legislative competence of the Parliament and is not law because it is incompatible with EU law (Scotland Act 1998, s. 29 (1),(2)(d)); (4) that, for the same reasons, the proposed Order would, if made, be outside devolved competence and be beyond the powers of the Scottish Ministers (Scotland Act 1998, ss.54(2),(3) and 57(2)). The incompatibility with EU law was said to arise in three respects. First, minimum pricing was said to contravene Article 34 TFEU and it was maintained that it could not be, or was not, justified under Article 36. Second, it was said to be incompatible with the common organisation of the market relating to wine and certain other alcohol products. Third, it is said to be in breach of Article 6(2) of Regulation (EC) 110/2008 relating to spirits.
Petitioners
[7] The first petitioners are a trade association representing distillers and others involved in the Scotch whisky industry. They have 52 members who account for more than 90% of production of Scotch whisky. A number of those members also import other alcoholic drinks, particularly spirits and wines, from other countries including other member states of the EU. The second petitioners are a representative body in the European Union for producers of spirit drinks. The third petitioners are a representative body for the European Union wine industry and trade.
Respondents
[8] The first respondent is the Lord Advocate and the second respondent is the Advocate General for Scotland. Alcohol Focus Scotland made a written intervention in terms of Rule of Court 58.8A but did not seek to make oral submissions.
First hearing
[9] The matter came before me for a first hearing. Prior to the first hearing the petitioners and both respondents prepared detailed written submissions in lieu of oral submissions being made by junior counsel. At the hearing - which occupied seven days - I heard extensive oral submissions from senior counsel for the petitioners and senior counsel for the first respondent. Senior counsel for the second respondent adopted the first respondent's submissions except in so far as relating to the Acts of Union challenge: on that matter the second respondent wished to make no submissions.
[10] I do not set out in detail all of the submissions made, or all of the authorities referred to. Had I done so it would have added considerably to the length of this Opinion. The written submissions are available for reference if required.
[11] I am grateful to counsel for their thorough and well-presented arguments. Thanks are also due to those who arranged that copies of the pleadings, productions, written submissions, and authorities were available on CD ROMS. That facilitated the hearing in court, my deliberations, and the preparation of this Opinion.
Legislative history
[12] The Alcohol (Minimum Pricing) (Scotland) Bill was introduced to the Scottish Parliament by the Scottish Ministers on 31 October 2011. The Health and Sport Committee, as lead committee, began taking stage 1 oral evidence on the general principles of the Bill on 10 January 2012. The committee received written evidence from a large number of interested parties and it met on five occasions to hear oral evidence (see the Stage 1 Report, Annexes B, C and D). The stage 1 debate took place in the Parliament on 14 March 2012. The Bill was passed following the stage 3 parliamentary debate on 24 May 2012. The result of the division was: for 86, against 1, abstentions 32. The Bill received Royal Assent on 29 June 2012.
[13] The Scotland Act 1998 provides:
"S. 29 Legislative competence
(1) 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.
(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,
(d) it is incompatible with any of the Convention rights or with EU law ....
S. 30.- Legislative competence: supplementary
(1) Schedule 5 (which defines reserved matters) shall have effect....
S. 37. Acts of Union
The Union with Scotland Act 1706 and the Union with England Act 1707
have effect subject to this Act....
S. 54.- Devolved competence
(1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.
(2) It is outside devolved competence-
(a) to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or
(b) to confirm or approve any subordinate legislation containing such provision.
(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.
S. 57.- EU law and Convention rights
.....
(2) A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.
.....
Schedule 4 ENACTMENTS ETC. PROTECTED FROM MODIFICATION
Part I THE PROTECTED PROVISIONS
Particular enactments
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 of the Union with England Act 1707 so far as they relate to freedom of trade ...."
Schedule 5 lists reserved matters. Part I contains General Reservations. Part II contains Specific Reservations. Part III contains General Provisions.
Acts of Union challenge
The petitioners' arguments
[14] The petitioners submitted that the Acts of Union are constitutional statutes. They "committed successor Parliaments to legislate within the underpinning constitutional framework".
[15] The Articles which the petitioners founded upon were:
"ARTICLE 4
[1] That all the Subjects of the United Kingdom of Great Britain shall from and after the Union...
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