Sinclair Collis V. The Lord Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Carloway,Lord Osborne |
| Judgment Date | 10 October 2012 |
| Neutral Citation | [2012] CSIH 80 |
| Date | 10 October 2012 |
| Court | Court of Session |
| Published date | 10 October 2012 |
| Docket Number | P576/10 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Carloway Lord Bonomy Lord Osborne | [2012] CSIH 80 P576/10 OPINION OF THE COURT delivered by LORD CARLOWAY in the reclaiming motion by SINCLAIR COLLIS LTD Petitioners and Reclaimers; against THE LORD ADVOCATE Respondent: _______________ |
Alt: Mure QC, Poole; Scottish Government Legal Directorate
10 October 2012
1. Legislative Background
[1] In terms of section 2 of the European Communities Act 1972 (c 68), the various Treaties of the European Union, which are detailed in section 1, are given legal effect in the United Kingdom. Questions relating to the interpretation of the Treaties are to be determined in accordance with the principles laid down by the European Court of Justice ("ECJ") (1972 Act s 3). These principles have primacy over national laws (Opinion 1/91 Re Draft Agreement relating to the Creation of a European Economic Area [1991] ECR I - 6079, para 21).
[2] Paragraph 3 of Article 3 of the Treaty on European Union establishes the "internal market". Chapter 3 of the Treaty on the Functioning of the European Union is headed "Prohibition Of Quantitative Restrictions Between Member States". Article 34 states:
"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States".
This is qualified by Article 36 which permits:
"...prohibitions or restrictions on imports, exports or goods in transit justified on grounds of... the protection of health and life of humans... Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States".
[3] Article 1 of the First Protocol of the European Convention on Human Rights states:
"Every ... legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law...
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...".
[4] Section 29(2)(d) of the Scotland Act 1998 (c 46) provides that an Act of the Scottish Parliament is outside its legislative competence if it is incompatible with the European Convention on Human Rights and Fundamental Freedoms or with European Union law. This litigation is concerned with whether, notwithstanding the certificates of compliance issued by both the Cabinet Secretary for Health and Wellbeing and the Presiding Officer, section 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (asp 3) falls into that category. Section 9 provides that it is an offence for a person having the management or control of premises to have a vending machine available for use on those premises. A vending machine is defined as meaning "an automatic machine for the sale of tobacco products".
[5] The purpose of section 9 was described in a Policy Memorandum, which was issued by the Scottish Government when the Bill was introduced to Parliament on 25 February 2009. It stated (para 2) that the Bill would enable the Government to continue its drive to improve Scotland's health. Smoking was one of the most damaging factors to health and was associated with a quarter of deaths each year. The Memorandum continued:
"3 ...Given that some 80% of smokers start smoking in their teens, a key component of the Scottish Government's health improvement drive is to protect children and young people from the impact of tobacco smoking. Statutory controls on the display and sale of tobacco products to reduce the attractiveness and availability of tobacco products to children and young people have an important role to play in that process".
The ban on the sale of cigarettes from vending machines was one of several measures proposed in the Bill, including restrictions on the display of cigarettes and the registration of tobacco retailers. In relation specifically to tobacco products, the Memorandum said:
"7 The measures contained in the Bill are aimed at reducing smoking among children and young people through updated statutory controls on the display and sale of tobacco products in Scotland".
[6] The Memorandum noted the content of earlier reports, namely the United Kingdom Government White Paper, entitled "Smoking Kills", published in 1998 and the action plan on tobacco control for Scotland, called "A Breath of Fresh Air for Scotland", issued in 2004. It took cognisance of the previous legislation which had introduced a ban on smoking in certain enclosed public places and raised the legal age of sale for tobacco products from sixteen to eighteen. Despite these measures, the Memorandum recorded (para 10) that 15,000 young people began to smoke every year. Accordingly, the Memorandum said, the Government proposed that further "bold and decisive" action was necessary to protect young people from smoking. The Memorandum referred to two further reports, namely "Towards A Future Without Tobacco", developed by the Smoking Prevention Working Group of experts on 22 November 2006, and "Scotland's Future is Smoke Free - A Smoking Prevention Action Plan", produced by the Scottish Government in May 2008. The former had contained a comprehensive series of recommendations, although none had been concerned with vending machines. The latter had observed that, by their very nature, sales from vending machines did not involve routine age checks.
[7] The Memorandum (at para 24) referred to an estimate of in excess of 36 million cigarettes being sold annually from some 6,500 vending machines in Scotland. It recorded that:
"In 2006, one in 10 of regular smokers aged 13 and 15 reported buying from cigarette vending machines accounting for some 14.2 million cigarettes annually".
The Memorandum proposed that "everything possible" should be done to prevent young people from accessing cigarettes. Since, by their very nature, vending machines did not involve routine age-checks prior to purchase, by comparison with the sale of alcohol, fireworks and solvents, the Government's position was that it could think of no strong argument for continuing to allow cigarettes to be available from such machines. The Government concluded:
"The only way to be absolutely certain that underage young people do not access cigarettes from vending machines is to ban the sale of cigarettes from vending machines completely in Scotland and measures contained in the Bill will debar the sale of tobacco products from vending machines".
[8] Part of the statistical material in the Memorandum had been derived from the Scottish Schools Adolescent Lifestyle and Substance Use Survey (SALSUS) National Report upon smoking, drinking and drug use among 13 and 15 year olds in Scotland in 2006. This report had highlighted the ability of children of that age to buy cigarettes from shops and vending machines. It (SALSUS, para 2.2.6) had contained the "one in 10" statistic. The content of the Memorandum had also, in part, come from a Regulatory Impact Assessment (RIA) on the Bill's provisions. This had analysed the impact of three options, viz: (1) to do nothing; (2) to introduce age-restriction mechanisms; and (3) to ban vending machines. It was the RIA which had created the figure of about 6,500 vending machines in Scotland as a pro rata by population estimate based on an United Kingdom total of 78,000. It had also produced the figure for Scottish vending machine sales at in excess of 36 million. It proceeded to note the SALSUS results. Using the "one in 10" statistic, it somehow came up with the figure of 14.2 million cigarettes, some 36-40% of the total, being bought by under eighteens. The RIA concluded (para 2.15) from the statistics that "a disproportionate number of 13 and 15 year olds obtain cigarettes" from machines. It estimated, again using the SALSUS findings, that 70% of under eighteens would be able to buy their cigarettes elsewhere in the event of a ban. This, it said, would mean that there would still be a reduction in sales to that group of some 4.25 million cigarettes. Given the experience of young people's ability to circumvent age-restrictions on the sale of goods, it was assumed that 25% would be able to circumvent age-restriction mechanisms. If it were correct that 10% of sales to under eighteens were from vending machines, this would mean a 2.5% reduction in sales
[9] It was accepted by the respondent that there were significant flaws in the figures employed in the RIA and in its application of basic arithmetic to them. For example, SALSUS had not said, as the RIA held, that one in ten under eighteens bought cigarettes only from vending machines.
[10] In the Memorandum (para 40 et seq), the Government considered the alternatives of doing nothing and introducing age-restriction mechanisms. It ruled out the first as failing to prevent sales to young people and as producing no gain to public health. It considered "infra-red control, ID coin mechanism, or electronic age-verification" devices but repeated (para 42) that, "While this may have an impact on underage sales...the only guaranteed way of preventing underage sales is to ban sales from vending machines completely".
[11] The Parliament's Health and Sport Committee was nominated as the lead committee to consider the Bill. It received over 100 responses to the Bill and held four sessions of oral testimony. Only the petitioners and the National Association of Cigarette Machine Operators gave evidence regarding age-restriction mechanisms. Their evidence proposed a remote-controlled radio frequency device, which would require staff to verify the age of the prospective purchaser before enabling the machine to dispense its product. It included the results of an independent pilot in England (organised by NACMO) which recorded an 80%...
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