Sinclair Collis Ltd, R (on the application of) v Secretary of State for Health & Ors

A measure restricting trade or property rights must pursue a legitimate aim and be suitable and necessary to achieve it. Where an equally effective, less onerous alternative exists, it should be preferred. The intensity of review varies with the decision-maker and context. Public health policy, particularly child protection, attracts a broad margin of appreciation, but proportionality remains a substantive requirement. A minister may impose a prohibition where a voluntary age-control scheme is not shown to be equally effective. Serious commercial loss and weaknesses in a cost-benefit analysis do not, without more, make the measure unlawful.

Sinclair Collis Ltd and the National Association of Cigarette Machine Operators challenged the prohibition on tobacco sales from vending machines under ss 22 and 23 of the Health Act 2009 and the Protection from Tobacco (Sales from Vending Machines) Regulations 2010.

Sir Anthony May P dismissed the judicial review claim: [2010] EWHC Admin 3112. The appeals concerned the construction of the enabling power, the appropriate intensity of proportionality review under Articles 34 and 36 TFEU and A1P1, and whether a voluntary age-restriction mechanism was a less restrictive alternative.

1. Disposition. By a majority, the appeals were dismissed. The Master of the Rolls and Arden LJ held that the prohibition was lawful. Laws LJ dissented and would have allowed the appeals.
2. Statutory construction. Section 3A(1) of the Children and Young Persons (Protection from Tobacco) Act 1991, inserted by the Health Act 2009, conferred a discretion to prohibit tobacco sales from automatic machines. It did not confer power to impose a regulatory scheme requiring age-restriction mechanisms. Section 3A(6)(b), permitting different provision for different cases or circumstances, did not authorise a partial ban limited to machines without such mechanisms.
3. Intensity of review. The applicable EU proportionality principle required suitability, necessity and consideration of less onerous alternatives. However, the level of scrutiny was context-sensitive. Public health involved complex policy choices and attracted a broad margin of appreciation. The majority applied the manifestly inappropriate or manifest error standard. This did not remove proportionality review, but limited the court’s substitution of its own assessment.
4. Application. Protecting children and improving adult smoking outcomes were legitimate public health aims. The evidence permitted the Secretary of State to conclude that removing a visible and accessible source of cigarettes would probably reduce smoking. The voluntary ARM scheme had weak trial evidence, depended on human compliance, lacked statutory sanctions and had not been shown to be equally effective. A ban was also easier to enforce.
5. The failure expressly to consider a voluntary code did not itself require the ban to be quashed. The court had to assess substantive proportionality on the evidence. The commercial consequences and shortcomings in the impact assessment did not overcome the broad margin of appreciation. No separate A1P1 analysis was necessary because no more intensive standard had been suggested.

• Court of Appeal (Civil Division). In [2011] EWCA Civ 437, the majority dismissed both appeals. Laws LJ dissented.
• Administrative Court, Queen’s Bench Division. Sir Anthony May P dismissed the judicial review claim in [2010] EWHC Admin 3112.