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Court of Session rules on minumum alcohol pricing

Scotland
01/05/2013
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In the case of The Scotch Whisky Association and Others v Lord Advocate; the Court of Session has ruled that the Alcohol (Minimum Pricing) (Scotland) Act 2012 was within the legislative competence of the Scottish Parliament and confirmed the legality of the Scottish Ministers' decision to establish a minimum alcohol price of 50 pence per unit.

Introduction

The Alcohol (Minimum Pricing) (Scotland) Act 2012 (the Act) received Royal Assent on 29 June 2012. The Act, if brought into force, will prohibit the sale of alcohol on licensed premises at a price below a minimum price to be calculated using a formula (minimum price per unit x alcohol strength x volume in litres x 100). The Act makes provision for the Scottish Ministers, through an Order approved by resolution of the Scottish Parliament, to specify the minimum price per unit of alcohol. The legislative intent is that a minimum price will promote public health and other social benefits through discouraging overconsumption of alcohol.

The Scotch Whisky Association challenged the legality of the Act and the Scottish Ministers' decision to make an Order setting a minimum price per unit of 50 pence. The Association argued that:

the Act and Scottish Ministers' decision were in breach of the Acts of Union;
the Act was outside the legislative competence of the Scottish Parliament as it purported to modify, or confer power to modify, Articles 4 and 6 of the Acts of Union as they relate to free trade within the United Kingdom; and
the Act was outside the devolved competence of the Scottish Parliament as it was incompatible with European law in several respects.
The Judgement

The Court of Session dismissed the Association's arguments and upheld the validity of the Act and the power of Scottish Ministers to set a minimum price per unit. Lord Doherty held that:
On a proper interpretation the Acts of Union have effect subject to the Scotland Act 1998 which confers devolved powers to the Scottish Parliament; the only restriction on legislative competence being in respect of Articles 4 and 6 of the Acts of Union as they relate to freedom of trade.
There was no conflict between the Act and Articles 4 and 6 and the Act did not seek to modify these Articles. In particular, the Articles do not require trading conditions in Scotland and England to be identical and the Act does not seek to restrict freedom of trade between Scotland and England or give any preference to traders in either country.
While there was a prima facie breach of Article 34 of the Treaty on the Functioning of the European Union, national legislation is afforded a margin of appreciation when the proportionality of legislative measures is considered by courts.
In this case the legitimate aim was to reduce alcohol consumption by problem drinkers, not to make the cost of alcohol prohibitive or to eradicate alcohol consumption, and there was objective evidence that the measures were appropriate to achieve this purpose. There was also objective evidence that the alternative measures proposed by the Association (increased excise duty) would be less effective in targeting the cheapest alcoholic drinks particularly associated with alcohol misuse.
The Act did not undermine or create exceptions to EU agricultural harmonisation measures, and other EU Regulations founded upon by the Association did not relate to alcohol pricing or protection of health.

The Association has indicated that it intends to appeal the judgement to the Inner House of the Court of Session. It is understood that the Scottish Government will not seek to introduce minimum alcohol pricing until the appeals process is exhausted.

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