IMPERIAL TOBACCO LIMITED for JUDICIAL REVIEW

Today at the Court of Session Lord Bracadale dismissed the petition by Imperial Tobacco Limited which sought a ruling that sections 1 and 9 of the Tobacco & Primary Medical Services (Scotland) Act 2010 were outside the legislative competence of the Scottish Parliament.

In 2008, in response to a report by the Smoking Prevention Working Group and other publications, the Scottish Government published Scotland’s Future is Smoke Free: A Smoking Prevention Plan.  Having regard to what it identified as the serious health problems associated with smoking, the Scottish Government declared its intention to introduce legislative controls to restrict the display of tobacco products at points of sale and to take steps in relation to the sale of cigarettes from vending machines.  This was stated to be part of its commitment to reducing the affordability, attractiveness and availability of tobacco products to children and young people in an effort to stop young people from starting to smoke in the first place.

On 27 January 2010 the Scottish Parliament passed the Tobacco & Primary Medical Services (Scotland) Act 2010.  Section 1 prohibits the display of tobacco products at point of sale and section 9 prohibits the use of vending machines to sell tobacco products.

Imperial Tobacco Ltd, which is engaged in the manufacture, marketing and sale of tobacco products, including well known brands of cigarettes, brought a judicial review seeking a ruling by the court that sections 1 and 9 of the 2010 Act were outside the legislative competence of the Scottish Parliament and therefore were not law. 

The Scottish Parliament, which first met in 1999, was established by section 1 of the Scotland Act 1998.   Section 28 of the Scotland Act provides that the Scottish Parliament may make laws to be known as Acts of the Scottish Parliament.  The court held that it should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable (para [3]).  Under the Scotland Act certain matters are reserved to the UK Parliament and there is a prohibition on the modification of certain existing rules. 

Four questions arose in the case:

  • Do sections 1 and 9 of the 2010 Act relate to a reserved matter in terms of 29(2)(b) and (3) of the Scotland Act?  
  • Are sections 1 and 9 of the 2010 Act deemed to be related to a reserved matter because they make modifications to Scots criminal law as it applies to reserved matters?  
  • Do sections 1 and 9 of the 2010 Act modify a rule of Scots criminal law which is special to a reserved matter?
  • Do sections 1 and 9 of the 2010 Act modify article VI of the Acts of Union 1706 and 1707 so far as it relates to freedom of trade? 

Imperial Tobacco argued that sections 1 and 9 of the 2010 Act related to a consumer protection issue, namely, the regulation of the sale and supply of goods and services to consumers which was a reserved matter in terms of section C7(a) of schedule 5 to the Scotland Act.  The court held that section C7(a) should be given a narrow construction as covering the terms on which goods and services are sold (paras [18] – [20]). 

Reasons for decision

After examining the terms of the provisions and the background materials, including the surrounding documents and the parliamentary debates, the court concluded that the purpose of sections 1 and 9 of the 2010 Act was to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term.  That purpose would not relate to a reserved matter in terms of section 29(2)(b) of the Scotland Act (paras [34] – [52]).

The court held that by creating new offences, sections 1 and 9 of the 2010 Act did not modify any general provision of Scots criminal law as it applied to a reserved matter.  They simply modified the circumstances in which a sale could take place (paras [57] – [60]). 

The court held that sections 1 and 9 of the 2010 Act did not modify a rule of Scots criminal law which is special to a reserved matter.  The first crucial step was to identify a rule of Scots criminal law being modified.  No such rule was identified.  These provisions did not modify any existing rule of Scots criminal law, including regulation 14 of the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002.  They created new, additional offences which fell to be added to the existing list of offences relating to the sale of tobacco products (paras [64] – [67]). 

The court held that sections 1 and 9 of the 2010 Act did not modify article VI of the Acts of Union so far as it related to freedom of trade.  Freedom of trade should be interpreted as relating to a common market.  This was confirmed by the Secretary of State for Scotland in the debate in the UK Parliament during the passage of the Scotland Act.  An examination of the historical context in which the Acts of Union were passed made it clear that the paramount concern on the Scottish side of entering the Union with England was gaining entrance to the common market of England and her colonies.  For years prior to the Union Scottish merchants had sought access to that market and had been refused (paras [74] – [80]).

Accordingly, the court held that sections 1 and 9 of the 2010 Act were within the competence of the Scottish Parliament and dismissed the petition. 

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

The full opinion is now available. 

 

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