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Appeal judges uphold tobacco sales Act

2 February 2012

Scottish Parliament legislation to ban displays of tobacco products on sale was within Holyrood's powers, appeal judges ruled today.

The Inner House of the Court of Session rejected a petition for judicial review of the Tobacco and Primary Medical Services (Scotland) Act, brought by Imperial Tobacco Ltd.

Imperial put forward four grounds of challenge, directed at sections 1 and 9 of the Act, under s 29(2)(b) and (c) of the Scotland Act:

  • that they "related to" a reserved matter, the regulation of the sale and supply of goods to consumers and so fell within Section C7 of the Scotland Act schedule setting out matters reserved to Westminster;
  • that in any event they modified Scots criminal law as it applied to a reserved matter;
  • that they "modified" the law on the same reserved matter;
  • that they modified article 6 of the Union with England Act 1707 so far as it relates to freedom of trade.

All three judges (Lord President Hamilton, Lord Reed and Lord Brodie), rejected each ground.

Purpose

Lord Reed said that in deciding whether a provision "related to" a reserved matter, the court had to ascertain the purpose of the provision, and then determine the question by reference to that purpose, having regard (among other things) to its effect in all the circumstances. "The focus is therefore primarily upon why the provision has been enacted rather than upon what it does, although the latter is also relevant." Contrary to Imperial's argument, it was relevant to consider the motive and the policy of the legislature in enacting the measure.

The Parliament had passed a number of Acts controlling the sale of specific items such as knives or solvents, "not for the purpose of protecting individual consumers, but because of concern about their effects upon the community generally, or upon children and young persons in particular", and this Act was broadly analogous to those.

On the third ground, the regulations that the Act was said to "modify" dealt with supply, and would continue to operate as before.

On the fourth, it had not been demonstrated that there was "any significant inequality between Scotland and England in relation to the subject-matter of sections 1 and 9".

Lord Hamilton considered in addition that the scope of Section C7 was narrower than contended for by Imperial, but the other judges did not adopt his reasoning on this point.

Lord Reed also rejected an argument for the Government that there was in effect a presumption of validity of Scottish Parliament Acts. "The democratic legitimacy of the Scottish Parliament does not in itself warrant a different approach to interpretation from that applicable to Acts of Parliament: statutes which are, of course, also passed by a representative and democratically elected Parliament", he said.

Implementation of the Scottish Government's legislation had been delayed pending the decision.

Click here to view the judgments.

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