Sinclair Collis Ltd For Judicial Review Of The Tobacco And Primary Health Services
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Judgment Date | 2011 |
| Neutral Citation | [2011] CSOH 80 |
| Docket Number | P576/10 |
| Published date | 13 May 2011 |
| Year | 2011 |
| Court | Court of Session |
| Date | 13 May 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 80 | |
| P576/10 | OPINION OF LORD DOHERTY in the Petition SINCLAIR COLLIS LIMITED Petitioners; for Judicial Review of the Tobacco and Primary Health Services (Scotland) Act 2010, section 9 ________________ |
Petitioner: Jones, Q.C., Gill; McGrigors LLP
First Respondent: Lord Boyd of Duncansby, Q.C.; Scottish Government Legal Directorate
13 May 2011
Introduction
Petition
[1] This Petition for judicial review challenges the legality of an enactment of the Scottish Parliament ("the Parliament"), namely section 9 of the Tobacco and Primary Health Services (Scotland) Act 2010 ("TPHSSA 2010"). The Act received Royal Assent on 3 March 2010. Section 9 has not yet been commenced. I was informed that the Scottish Ministers plan to bring it into force in October 2011. The Petitioners seek declarator that section 9 is invalid and reduction of the section. They contend that the section is outside the legislative competence of the Parliament and is not law because it is incompatible with Convention rights (Article 1 of the First Protocol ("A1P1")) and with Community law (Article 34 of the Treaty for the Functioning of the European Union ("TFEU")) : Scotland Act 1998, section 29(1), (2)(d). In addition, it is averred that section 9 is inapplicable and unenforceable because the United Kingdom has failed to notify it to the Commission of the European Communities in accordance with Article 8(1) of the Technical Standards Directive (Directive 98/34/EC).
Petitioners
[2] The Petitioners are a wholly owned subsidiary of Imperial Tobacco Limited. They own and operate tobacco vending machines. They are the largest such operator in the United Kingdom. As at 1 August 2010 they owned and operated approximately 18,000 machines at approximately 17,000 sites and employed 148 people. In Scotland they owned and operated 1,708 machines at 1,454 sites and employed 13 people. They import tobacco vending machines from other Member States for use in their business.
Respondents
[3] The Petition was intimated to the Lord Advocate ("the First Respondent") and to the Advocate General for Scotland. The Lord Advocate lodged Answers on behalf of the Scottish Ministers and for the public interest. The Advocate General lodged Answers but subsequently withdrew them.
First Hearing
[4] The matter came before me for a First Hearing. Shortly before the First Hearing the First Respondent lodged a Minute (16 of Process). The Minute stated:
"... (T)he Scottish Ministers have decided to notify the terms of section 9 to the Commission under the Technical Standards Directive on a protective basis. An Order will be made under sections 2(2) of the European Communities Act 1972 repealing and re-enacting section 9. Before doing so the Order will be notified in draft to the Commission and the procedure under the Directive will be followed in respect of this Order. Scottish Ministers will not make or lay the Order until the resolution of this petition and accordingly section 9 TPHSSA will remain unaffected until that time..."
A copy of the draft Order was produced (7/57 of Process). Parties accepted that in the circumstances described there should be no argument in relation to Article 8(1) of the Directive at the First Hearing. They maintained that the other arguments ought to be capable of being disposed of at the First Hearing.
[5] Extensive Notes of Argument were lodged. The First Hearing took place over a period of nine days. By far the greater part of that period was devoted to the Community law challenge. I do not propose to set out in detail all of the submissions made and authorities referred to. Had I done so it would have added considerably to the length of this Opinion. I will give an outline of the principal arguments which were advanced. The Notes of Argument (11 and 12 of Process) are available for reference if required.
[6] It would be remiss not to record my appreciation of the assistance I have obtained from the thorough and well presented submissions which were made to me. Thanks are also due to those who arranged that copies of the productions and the authorities be available on CD ROMS. This facilitated the hearing in court, my deliberations, and the preparation of this Opinion.
TPHSSA 2010
Introduction
[7] The 2010 Act, according to its long title, is,
"An Act of the Scottish Parliament to make provision about the retailing of tobacco products, including provision prohibiting the display of tobacco products and establishing a register of tobacco retailers; ... and for connected purposes"
Section 9
[8] Section 9 provides:
"9 Prohibition of vending machines for the sale of tobacco products
(1) A person who has the management or control of premises on which a vending machine is available for use commits an offence.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(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)."
[9] The policy underlying section 9 was to improve public health by reducing the availability and attractiveness of cigarettes to children and young people. The aim of section 9 is to prevent tobacco products being sold by automatic vending machines to children and young persons. The section seeks to remove a known source of cigarettes to children and young persons, thereby reducing smoking and improving public health.
Legislative history
[10] In Adams v Scottish Ministers 2004 SC 665 at paragraph [18] the Second Division succinctly described the Scottish Parliament's legislative procedure:
"The standing orders of the Scottish Parliament (Scotland Act 1998, sec 22; sched 3) provide for three stages in the legislative process (sec 36; Standing Orders, r 9.5). Stage 1 is the general debate on the Bill at which members have the opportunity to vote on its general principles (r 9.6). Stage 2 involves consideration of, and voting on, the details of the Bill in committee (r 9.7). At Stage 3 the Bill is either passed or rejected by the Parliament (r.9.8). At stage 2 and 3 the Bill can be amended (r 9.7(5); 9.8(3)). Amendments at either stage are admissible only if they are consistent with the general principles of the Bill as agreed by the Parliament at stage 1 (r 9.10(5)(c))."
(Although the Parliament's Standing Orders have been revised and amended since Adams (the current edition is the 4th edition (April 2011) and the edition in force at the time the TPHSSA was before the Parliament was the 3rd edition (2007)), the above description remains an accurate one).
[11] On 25 February 2009 the Minister for Public Health and Sport introduced the Bill in the Parliament. The Health and Sport Committee of the Parliament was nominated as the lead committee on the Bill. The Committee received many submissions and heard a good deal of oral evidence which dealt with the prohibition contained in section 9. Interested parties who made submissions and gave evidence included the Petitioners, other representatives of tobacco vending machine businesses, tobacco companies, smoking and anti-smoking pressure groups, local authorities, trading standards officers, representatives of those in the liquor licensed trade, the NHS and other health organisations, and retailers. Full lists of those who made written submissions and those who gave evidence are contained in Annexe B of Vol. 2 to the Stage 1 Report (6/8 of Process). The submissions and the evidence considered inter alia the use of age restriction mechanisms with cigarette vending machines, including radio frequency controlled mechanisms. It included a report from NACMO, "Radio Frequency Controlled Cigarette Vending Machines, Preliminary Test Results" (7/26 of Process) and a report "LACORS: Test Purchasing of Tobacco Products; Results from Local Authority Trading Standards" (6/79 of Process).
[12] The Committee's Stage 1 Report was in favour of the general principles of the Bill including the prohibition of tobacco vending machines. It concluded:
"78. The Committee also notes the alternative proposal put forward by operators of vending machines for a radio-controlled system based on age verification by bar staff in licensed premises. However, the Committee remains to be convinced that this system could be made to work in practice across the range of situations in which a vending machine might be installed - for example, in crowded city-centre pubs where there are many distractions for bar staff."
[13] On 24 September 2009 there was an extended debate on the Stage 1 report. There were differences of view in relation to the proposed prohibition. The Parliament agreed to the general principles of the Bill. In its detailed consideration at Stage 2 a member of the Committee proposed an amendment to the prohibition to allow radio frequency controlled vending machines to remain on licensed premises. On a division the amendment was not agreed to. On 27 January 2010, during Stage 3, the Parliament debated a similar proposed amendment. It was rejected with 14 MSPs voting for it and 105 voting against it (Official Report, 6/13 of Process).
Incompatibility
[14] The Scotland Act 1998, section 29 provides:
"(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 -
(d) it is incompatible with any of the Convention rights or with Community law..."
The Community law challenge: Articles 34 and 36
Introduction
[15] Article 34 is one of the articles of the Treaty for the Functioning of the European Union (TFEU) which regulates the free movement of goods between Member States. It provides:
"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between...
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