Challenge to tobacco control legislation fails

2 February 2012

In Imperial Tobacco v Lord Advocate [2012] CSIH 9, Imperial Tobacco challenged Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (“TPMSSA”) as being outwith the legislative competence of the Scottish Parliament, on the basis that they trespassed on areas reserved to the Westminster Parliament. 

Section 1 contains provisions banning cigarette displays in shops, and Section 9 bans the sale of cigarettes from vending machines.  The bans are part of a government action plan to tackle smoking.  They aim to make cigarettes less available, accessible and attractive to children, so that fewer people take up smoking, and public health is improved.

The Inner House decided that Sections 1 and 9 were within legislative competence.  The Lord President, Lord Reed and Lord Brodie each issued separate decisions.  There were essentially four grounds of challenge by the petitioner, and although the judges separately rejected each challenge, their reasons for doing so differ.  The decisions contain useful guidance about a number of issues, including:

1. General interpretative principles in the context of the Scotland Act and legislative competence challenges

2. Whether there is a presumption of validity of an Act of the Scottish Parliament 

3. How to construe reserved matters within Schedule 5

4. The role of explanatory notes in that construction exercise

5. The scope of reservation C7(a) (sale and supply of goods and services to consumers), and of C8 (product safety)

6. What ‘relating to’ a reserved matter means, and whether Sections 1 and 9 of TPMSSA ‘relate to’ a reserved matter

7. What a ‘modification’ is

8. Why Sections 1 and 9 do not modify Scots criminal law as it applies to a reserved matter

9. Why Sections 1 and 9 are not in breach of restrictions in Schedule 4 preventing legislation which modifies the law on reserved matters

10. Why Sections 1 and 9 cannot be said to modify Article 6 of the Act of Union so far as it relates to the freedom of trade

James Mure QC and Anna Poole of Axiom Advocates acted on behalf of the Lord Advocate.

http://www.scotcourts.gov.uk/opinions/2012CSIH9.html