In the case of Imperial Tobacco Limited v The Lord Advocate1 the Supreme Court has ruled that it is within the legislative competence of the Scottish Parliament to prohibit the display of tobacco products in places where they are sold and to prohibit vending machines for the sale of tobacco products. In upholding the legislative competence of the Tobacco and Primary Medical Services (Scotland) Act 2010 the Court also confirmed the principles to be applied in determining whether a statutory provision is outside the competence of the Scottish Parliament.
Introduction
The Tobacco and Primary Medical Services (Scotland) Act 2010 (the Act) received Royal Assent on 3 March 2010. Among other matters the Act prohibits the display of tobacco products in places where they are sold and prohibits vending machines for the sale of tobacco products. The objective is to promote public health through discouraging the sale of tobacco products. Imperial Tobacco challenged the Act on the basis that it legislated on matters which were, in terms of the Scotland Act 1998 (the 1998 Act), out with the legislative competence of the Scottish Parliament. The case was dismissed by the Scottish Courts and Imperial Tobacco appealed to the Supreme Court. On 12 December the Supreme Court unanimously dismissed the appeal. The ban on tobacco display and vending machines is now expected to come into force in April 2013.
Interpreting the Scotland Act 1998
Lord Hope noted that this is, remarkably, the first case in which an Act of the Scottish Parliament has been challenged on the ground that it relates to a matter reserved to the Westminster Parliament. The judgement confirmed three principles which should be adopted in determining future cases:
1.
| The question of legislative competence must be determined, in each case, by looking at the particular rules set out in the 1998 Act2. The 1998 Act defines legislative competence and it is not for the Courts to look beyond the 1998 Act; |
2.
| The rules laid down in the 1998 Act must be interpreted in the same way as for any other statute, according to the ordinary meaning of the words used; and |
3.
| Although the 1998 Act can be described as a "constitutional statute" this cannot be taken, in itself, to be a guide to its interpretation. However, it is proper to have regard to the purpose of the 1998 Act where help is needed as to the meaning of the statutory language. |
The decision
A provision is out with the legislative competence of the Scottish Parliament if it "relates to reserved matters"3. The appellant argued that sections 1 and 9 of the Act relate to "the sale and supply of goods to consumers" and to "product safety" both of which are reserved matters. By contrast it was common ground that protection or promotion of public health (subject to a few specific reserved matters) is a devolved matter.
The Court dismissed the appellant's argument. Even if every aspect of the sale and supply of goods to consumers within the area of consumer protection was a reserved matter, which the Court doubted, the relevant sections of the Act did not relate to this matter. The Act aimed to discourage sale of tobacco products through making them less visible and available, not to regulate how continuing sales are to be conducted in order to protect consumers from unfair trade practices. Similarly, as regards product safety, the Act did not seek to regulate standards of safety in the production or sale of tobacco products.
A second argument that the Act sought to modify Scottish criminal law as it related to reserved matters, through the creation of new criminal offences, was also dismissed. The purpose of the new offences in the Act was support the measures discouraging the sale of tobacco products. The criminal law as regards any sales in a place where tobacco products are available was not affected and existing offences were not modified.
Footnotes
| 1. | [2012] UKSC 61 |
| 2. | In section 29 and Schedules 4 and 5 |
| 3. | Scotland Act 1998, section 29(2)(b) |
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