Introduction

The Scotch Whisky Association ("SWA"), along with two other European trade bodies who represent the alcohol industry in Europe, have petitioned the Court of Session for judicial review of the Scottish Government's decision to introduce a minimum unit price ("MUP") for alcohol sold in Scotland. In response to the petition, Alcohol Focus Scotland ("AFS"), a charity concerned with the effects of alcohol misuse on public health, sought to intervene in the public interest.

The Facts

In 2007, the Scottish National Party ("SNP") was elected to the Scottish Parliament as a minority government. Their manifesto included a pledge to introduce a MUP for alcohol sold in Scotland with the aim of counteracting Scotland's problematic relationship with alcohol. However, when the proposal was brought before parliament, it was defeated.

In 2011, the SNP were elected as the Scottish Parliament's first majority government. They were able to use this majority to push ahead with their plans for minimum pricing. On 14 May 2012, Nicola Sturgeon, the then Scottish Government Health Secretary, announced that they would be bringing forward plans to introduce a £0.50 MUP. These plans were laid out in full in the Alcohol (Minimum Pricing) (Scotland) Act 2012 (the "2012 Act"), which received Royal Assent on 29 July 2012.

The SWA has lobbied against a MUP for alcohol for many years. They have consistently argued that it violates European Union law, and is therefore outwith the competence of the Scottish Parliament. On 19 July 2012, the SWA, along with Comite Vins, a body representing 90% of European wine production, and the European Spirits Organisation, lodged a petition with the Court of Session seeking judicial review of the 2012 Act. They argue that the 2012 Act is outwith the competence of the Scottish Parliament, and that there is no evidence that a MUP would decrease alcohol consumption and benefit public health.

The Issues

In September, AFS applied to the court for permission to intervene in the petition.

During the hearing on the application, the petitioners accepted that there is a great deal of public interest in the issue. However, they argued that as AFS receives a significant amount of its funding from the Scottish Government, it is not an independent body. Further, they submitted that AFS would add little to the submissions from the Scottish and UK Governments on the matter, and that any intervention should be limited to merely noting that there is evidence that a MUP could have a public health benefit.

For their part, AFS argued that their intervention would be funded from charitable contributions and not their government funding. They also noted that their intervention would be minimal as they were only seeking to submit a 5,000 word report explaining the public health benefits of MUP, along with supporting documents.

The Decision

Lord Hodge agreed that the alcohol industry contributes to the Scottish economy and that alcohol, when used responsibly, is not a bad thing. However, he considered that alcohol misuse causes a lot of pain in society and that the position of the AFS is clearly in the public interest. Furthermore, Lord Hodge rejected the argument that because AFS receives 30-40% of its funding from the Scottish Government that it was automatically to be seen as a government mouthpiece. He also accepted that it was likely that their contribution to the action would assist the court. Given this, Lord Hodge allowed AFS to intervene in the action by submitting a 5,000 word written submission.

Lastly, it was noted that AFS had submitted that it would not make the intervention at all if it was not protected against an award of costs. Given the limited nature of the proposed intervention, Lord Hodge made an order that the intervention would be on a "no costs" basis.

Comment

The decision by Lord Hodge strengthens the ability of third parties to intervene in the public interest in judicial review. It is important to remember that judicial review is about public law issues. Allowing organisations to intervene in the public interest, where appropriate, can significantly aid the court and the interests of justice.

It is also a further example of a protective costs order, new rules on which are in the pipeline.