Imperial Tobacco Limited v The Lord Advocate (Scotland)

Facts

The Tobacco and Primary Medical Services (Scotland) Act 2010 prohibited the display of tobacco products at the point of sale and the sale of tobacco from vending machines. Imperial Tobacco claimed that these provisions were outside the competence of the Scottish Parliament as they related to the reserved matters of product standards, safety and liability and consumer protection, which are reserved under the Scotland Act 1998, and that they conflicted with European Union law and the right to property.

History

The company petitioned for judicial review in the Court of Session, and its challenge was rejected there at first instance and by the Inner House. It appealed to the Supreme Court.

Issue

Whether the display and vending machine provisions related to reserved matters within the meaning of s 29(2)(b) of the Scotland Act 1998, determined by their purpose having regard to their effect in all the circumstances, and whether they were incompatible with EU law or Convention rights.

Held

Appeal dismissed. The provisions were within the legislative competence of the Scottish Parliament, as their purpose was to protect public health by reducing the use of tobacco, not to regulate the sale of goods in a reserved field.

Ratio

• Under s 29(2)(b) of the Scotland Act 1998 a provision relates to a reserved matter only if its purpose, judged by its effect in all the circumstances, relates to that matter; a provision aimed at public health by discouraging smoking is not within the reservation of product standards, safety and liability or consumer protection, even though it affects the retail sale of a product.

Key reasoning

• Section 29(2)(b) requires the purpose of the provision to be identified by looking at its effect in all the circumstances, and the court looks at the pith and substance of the provision.
• The display ban was directed at reducing the attractiveness and visibility of tobacco in order to protect public health, a devolved matter, and not at regulating the characteristics of the product.
• The reservations concerning product standards and consumer protection are to be read in their context, which does not extend to all measures that affect the sale of goods.
• The challenges based on EU law and the right to property failed.

Where it fits in the module

The topic on the Government of Wales Act and devolution concerns how legislative competence is defined and policed in a system where a sovereign Westminster Parliament grants powers to devolved legislatures. Imperial Tobacco is a leading case on the Scottish model of reserved matters, which Wales adopted from 2017, and the purpose test illustrates the courts role as arbiter of the boundaries of devolution. It also shows that devolved legislatures may legislate in ways that affect reserved areas if the purpose lies within their powers.

Criticisms

• The purpose test is flexible and depends on how the court characterises the provision, which leaves the boundary between devolved and reserved matters uncertain.
• Focusing on purpose lets the devolved legislature pursue a devolved aim by measures that have substantial effects on a reserved field, which may undermine the intended reservation.
• The reasoning gives a narrow reading to the reservation of product regulation, which could weaken the UK-wide market and uniform regulation that the reservation was designed to protect.