Imperial Tobacco Limited v The Lord Advocate (Scotland)

The legislative competence of the Scottish Parliament is determined by construing the particular rules in the Scotland Act 1998 according to their ordinary meaning, read in context. Constitutional status creates no special rule of construction or presumption of competence.

Whether devolved legislation “relates to” a reserved matter depends principally on its purpose, having regard to its effects in all the circumstances. The connection must be more than loose or consequential. Legislation intended to reduce tobacco consumption for public-health reasons does not relate to reserved consumer protection or product safety merely because it affects sales.

Creating additional criminal offences does not modify the law on reserved matters where the new provisions neither amend nor otherwise affect the existing reserved rules.

The appellant challenged sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010. Those provisions prohibited tobacco displays at points of sale and vending machines for tobacco products. It contended that they related to the reserved matters of consumer protection and product safety, or modified Scots criminal law concerning reserved matters.

The Lord Ordinary dismissed the petition for judicial review: [2010] CSOH 134, 2010 SLT 1203. The First Division dismissed the reclaiming motion: [2012] CSIH 9, 2012 SC 297. The appellant abandoned its challenges concerning freedom of trade under the Acts of Union and section 29(4) of the Scotland Act 1998.

The central issue was whether the remaining challenges established that sections 1 and 9 were outside the Scottish Parliament’s legislative competence.

1. The appeal was dismissed unanimously. Lord Hope delivered the judgment, with which Lord Walker, Lady Hale, Lord Kerr and Lord Sumption agreed. Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 were within the legislative competence of the Scottish Parliament. The First Division’s interlocutor was affirmed.

2. The rules governing competence in section 29 and Schedules 4 and 5 to the Scotland Act 1998 are construed like the rules in any other United Kingdom statute. Their ordinary meaning should produce a coherent, stable and workable system. The Act’s constitutional description creates neither a special interpretative rule nor a presumption of competence. Its purpose nevertheless supplies relevant context: devolved legislation should operate effectively within carefully defined reservations.

3. Under section 29(3), whether a provision “relates to” a reserved matter is determined by its purpose, having regard to its effect in all the circumstances. The expression requires more than a loose or consequential connection. If legislation has several purposes, a purpose relating to a reserved matter ordinarily places it outside competence, unless that purpose is merely consequential and insignificant in the context of the provision as a whole.

4. Section C7(a) of Schedule 5 reserves regulation of the sale and supply of goods and services to consumers within the field of consumer protection. It does not reserve regulation of consumer sales for every purpose. Sections 1 and 9 sought to reduce smoking by making tobacco products less visible and less readily available. They neither regulated the terms of sales nor protected consumers from unfair trading practices. They therefore did not relate to the C7 reservation.

5. The product-safety reservation in section C8 extends to matters within section 11 of the Consumer Protection Act 1987, including measures concerning intrinsically dangerous products. Sections 1 and 9 did not prescribe safety standards, prohibit the supply of particular tobacco products, or regulate product information. Their public-health purpose did not become a product-safety purpose merely because reduced visibility and availability were intended to reduce sales.

6. Paragraph 2(1) of Schedule 4 was not breached. The existing tobacco safety regulations remained in force and unaltered. Sections 1 and 9 created separate offences directed to displays and vending machines, but did not amend, affect or modify the existing criminal rules concerning reserved product-safety matters.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously and the First Division’s interlocutor was affirmed: [2012] UKSC 61.

2. First Division of the Court of Session: The reclaiming motion was dismissed: [2012] CSIH 9, 2012 SC 297.

3. Outer House of the Court of Session: Lord Bracadale rejected each challenge to legislative competence and dismissed the petition for judicial review: [2010] CSOH 134, 2010 SLT 1203.