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TOP STORY: Supreme Court MUP showdown: Scots Govt versus Big Whisky

Industry lawyers make last-ditch attempt to scotch legislation

Five years after Scotland legislated for Minimum Unit Pricing (MUP), lawyers met at the UK Supreme Court in London to discuss whether their legislation is incompatible with European Union law and therefore unlawful under the Scotland Act 1998.

The two-day hearing may turn out to be the final chapter in a long-running court case between the Scottish Government and an opposition led by the Scotch Whisky Association (SWA).

Given the right to appeal the 2016 ruling of the Scottish Court of Session, the SWA’s lawyers brought the case to be considered by seven justices at the UK’s highest court.

Led by Lord Neuberger, judges pored over the details of the 2013 ruling of the Lord Ordinary, which rejected the SWA appeal in the first instance at the Scottish Court of Session in Edinburgh. The case has since been taken to the European Court of Justice – which ruled that it was for the domestic courts to decide – and then back to the Scottish Court of Session, whose judges again declared MUP to be lawful.

A law of “national public importance”

Some legal experts in Scotland who have been following the case have stressed the potential implications of the verdict to be delivered from the current appeal. Emma Boffey, a solicitor at law firm CMS, told The Financial Times that the appeal is one of the “most significant” public law cases to be heard before the UK Supreme Court this year.

“It is of national public importance: the decision in the case will have an immediate and lasting impact on the direction of public health policy in Scotland.

“The Scottish Government’s position has been that the societal problems caused by excessive alcohol consumption in Scotland are so significant that groundbreaking measures are required,” said Boffey.

Public health NGOs are also taking a very keen interest in the case for this reason. In an article for The Herald, Alcohol Focus Scotland chief executive Alison Douglas said: “Preventing alcohol harm requires regulation not simply education. Alcohol producers and retailers need to accept that the products they make and sell are toxic, addictive and carcinogenic so it’s absolutely right that controls are in place to minimise the harm caused.

“We don’t want Scotland to be known for heavy drinking. That’s not something to be proud of. We should be known for our progressive approach to improving health, creating better communities, and reducing inequalities. Minimum unit pricing is the biggest public health breakthrough since the ban on smoking in public places. It will save many lives and improve many more.”

A “quiverful” of options

Acting for the SWA, Aidan O’Neill QC claimed that MUP plans were “too much of a blunt instrument to be justifiable as a matter of health and protection of life of humans”, and that there were a “quiverful” of other taxation measures or excise reforms that would be fairer and legal under EU law, and also mean that the extra taxes could be spent directly on health and anti-poverty measures.

However, defending the legislation, James Wolffe QC, Scotland’s Lord Advocate, argued that the ECJ’s ruling considered that as an issue, but was satisfied that the aforementioned interference was justified on the grounds that it pursued the objective of protecting health and life by reducing, in a targeted way, both the consumption of alcohol by consumers whose consumption was hazardous or harmful, and also, more generally, the population’s consumption of alcohol.

“It effectively targets those who will benefit most, namely hazardous and harmful drinkers. There is a strong evidence base that it will be an effective intervention.”

Implications

Scottish Health Action on Alcohol Problems (SHAAP) hope that the judges’ decision will finally signal the go-ahead for the Scottish government to implement MUP. The NGO estimates that in the 5 years that the law has been delayed, approximately 5,700 heavy drinkers reliant mainly on cheap vodka and white cider have died as a result of alcohol-related causes, and that MUP – a popular policy among the Scottish public – would be one of the most effective measures in helping problem drinkers to cut down on their risky consumption.

SHAAP director Dr Eric Carlin said: “As representatives of front line medical practitioners and public health, we have praised the Scottish Government’s continued commitment to MUP as a key policy that, along with other evidence-based policies, will reduce alcohol harms in Scotland. We have consistently been shocked by the disregard for Scottish lives by the global alcohol producers, fronted by the Scotch Whisky Association, who have used financial muscle and spurious, changing arguments to block the implementation of MUP.

“The policy became law in 2012, without any opposition in the Scottish Parliament. We keenly await the Supreme Court judgement, which we hope will come soon. We are confident that their Lordships will favour this life-saving policy, which we hope will now be implemented in Scotland, with as little delay as possible.”

As James Morris writes in Alcohol Policy UK, the MUP legal ruling also has significant implications for the Welsh and Irish governments, that wish to implement similar measures in their jurisdictions. In England, government ministers have been sketchy on the issue following the infamous 2012 U-turn, but have largely insisted they have not ruled out the policy.

Although the date of the Supreme Court’s ruling is not yet known, many involved in the field will be hoping that the verdict proves final.

You can follow the Soundcloud link to hear SHAAP chair Dr Peter Rice offer a brief history of Minimum Unit Pricing in our latest Alcohol Alert podcast.