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Scottish Government's minimum price for alcohol upheld by Court of Session

Out-Law News | 03 May 2013 | 5:10 pm | 3 min. read

A legal challenge to the Scottish Government's minimum price per unit of alcohol by the Scotch Whisky Association has been rejected by the Court of Session.

In his ruling, Lord Doherty said that the Alcohol (Minimum Pricing) (Scotland) Act and a subsequent announcement that the Scottish Government would set a minimum price for alcohol of 50p per unit were within the powers of Scottish Ministers. In addition, the proposals did not breach European laws by restricting free trade, he said.

The SWA, which brought judicial review proceedings with European trade bodies for the wines and spirits industry, said that it would appeal the judgment. The Scottish Government has pledged not to introduce minimum pricing until legal proceedings have concluded.

Health Secretary Alex Neil said that the policy would "target cheap alcohol relative to strength that is favoured by hazardous and harmful drinkers and which contributes to much of the alcohol-related harm we see in Scotland".

"We now look forward to being able to implement minimum unit pricing and making that transformational change in Scotland's relationship with alcohol," he said.

Once the measures come into force, a standard sized bottle of wine will cost at least £4.50.

Licensing law experts Audrey Ferrie and Frances Ennis of Pinsent Masons, the law firm behind Out-Law.com, said that the judgment was a "comprehensive defeat for the opponents of minimum unit pricing".

"Although an appeal is possible it is difficult to see where the SWA goes from here," Ferrie said. "I think the measures will now become law. Westminster has been watching this case carefully and may press ahead with its own plans now."

Both parties conceded that the minimum pricing provisions had "equivalent effect to quantitative restrictions on imports", making them illegal under European law unless they could be justified, Lord Docherty said. The Scottish Government had argued that measures were "justifiable on the grounds of the protection of public health and the prevention of public disorder". However, the trade bodies argued that raising the price of alcohol was not a proportionate way of meeting those aims, which would be better served by raising excise duties on all alcoholic drinks.

Lord Docherty said that, under European law, the "crucial question" was whether there was an "objective justification" for what was being proposed.

"The fact that there may be controversy, and that the evidence may not be all one way, does not preclude the conclusion that the necessary justification is present," he said.

He said that introducing higher taxes would meet one of the Scottish Government's aims; that of reducing the amount of alcohol drunk by the population generally. However, it would not have any effect on "hazardous and harmful consumption" by those who drank vast quantities of cheap alcohol, he said.

"In my opinion there is inherent in the Act and the proposed Order a judgment as to the level of protection of health and life the measures are designed to achieve," he said. "There is also a judgment that the best way of maximising reductions in sales, consumption and harm is to focus price increases on cheaper alcohol."

"Socio-economic considerations, such as concerns for the on-trade or for moderate drinkers, could not be used to justify measures which were more restrictive of free movement than the alternative measures which were equally effective in providing the desired degree of protection of health and life. However, they are matters which may legitimately be taken into account in deciding the level of protection of health and life the Parliament and the Ministers wish to secure," he said.

The judge also said that it was not "necessary or appropriate" to make a reference to the Court of Justice of the European Union for help with interpreting the laws.

"The view from Europe is very different to that expressed by the court and we are not alone in having concerns about the legality of minimum unit pricing," said SWA chief executive Gavin Hewitt following the judgment. "We are joined in our legal action by spiritsEUROPE and Comite Vins. The European Commission and more than 10 member states have expressed their concerns that minimum unit pricing contravenes EU trading rules and their opposition to the Scottish proposals."

"We have consistently opposed minimum unit pricing so our decision to appeal should not come as a surprise," he said.