Sinclair Collis Ltd v Secretary of State for Health & Anor

Where primary legislation restricts imports to protect human health, the national legislature enjoys a broad margin of discretion. The court asks whether the measure is appropriate to achieve the legitimate health objective, goes no further than necessary, and is not manifestly unreasonable or inappropriate. A legislative ban may be proportionate even where its benefits cannot be reduced to a reliable monetary calculation.

For Article 1 of Protocol 1, a prohibition controlling the use of business assets need not provide compensation if the legislature could properly conclude that the community benefit outweighs the individual detriment. Parliament’s legislative aim is identified from the enacted legislation and admissible context, not solely from the ministerial proposal that preceded it.

The claimant, a tobacco-vending-machine operator, challenged sections 22 and 23 of the Health Act 2009 and the Protection from Tobacco (Sales from Vending Machines) Regulations 2010. The measures prohibited the sale of tobacco from automatic vending machines from 1 October 2011.

The claimant contended that the ban infringed Article 34 of the Treaty on the Functioning of the European Union and Article 1 of Protocol 1 to the European Convention on Human Rights. It relied on the availability of less restrictive age-verification technology, alleged defects in the impact assessments, inconsistency with sales through shops, and the absence of compensation. The central issue was whether the ban was justified and proportionate.

1. Claims dismissed. The ban on tobacco sales from automatic vending machines was justified under Article 36 TFEU and compatible with Article 1 of Protocol 1.
2. Parliament’s legislative aim was to reduce the availability and take-up of cigarettes by persons under 18, thereby protecting their health. The aim was identified from sections 22 and 23 of the Health Act 2009, the statutory context, consultations, impact assessments and the wider legislative programme. The court was not confined to the ministerial aim behind the rejected proposal for mandatory age-restriction technology.
3. The prediction that closing one source of tobacco would reduce smoking by some young people was one on which Parliament was entitled to exercise judgment. The health objective was legitimate.
4. For Article 1 of Protocol 1, the ban was a control of the use of possessions rather than a deprivation. Compensation was therefore unnecessary if the legislature could properly conclude that the community benefit outweighed the individual detriment. The detriment to the vending-machine businesses was sufficiently identified, and Parliament’s judgment was not manifestly without foundation.
5. For Article 36, the legislature had a broad margin of discretion in a public-health measure enacted by primary legislation. The ban was appropriate to achieve the legislative aim and did not go beyond what was necessary, given Parliament’s judgment that mandatory age-restriction technology was inadequate. The court accepted that proportionality involved comparison between the health benefit and the detriment, but the imprecise cost-benefit calculations did not undermine the antecedent legislative judgment.
6. The alleged inconsistency between banning vending machines and permitting age-controlled sales in shops was illusory. Different forms of sale could legitimately attract different measures, while sales to persons under 18 remained unlawful by every means.