Earlier this year, the UK Supreme Court heard the much anticipated appeal brought by the Scotch Whisky Association, spiritsEUROPE and CEEV against the Scottish Ministers, regarding their plans to introduce minimum pricing for alcohol in Scotland.
The Alcohol (Minimum Pricing) (Scotland) Act 2012 amended the Licensing (Scotland) Act 2005 by introducing a new paragraph 6A(1) to Schedule 3, requiring that ‘Alcohol must not be sold … at a price below its minimum price'. The Scottish Ministers have prepared a draft order specifying a minimum price per unit of 50 pence but neither the 2012 Act nor the order have been brought into force pending the outcome of this legal challenge.
The UK Supreme Court have announced they will give their decision at 9.45am UK GMT on Wednesday 15 November 2017. You will be able to watch the decision being handed down live, at the UK Supreme Court website.
What happened at the hearing?
During the course of the appeal hearing, the UK Supreme Court heard from parties on whether the proposed measure is a lawful means of achieving the Scottish Government’s aims of (1) decreasing consumption of alcohol among the population generally; and (2) decreasing consumption among hazardous and harmful drinks.
The appellants (Scotch Whisky Association, spiritsEUROPE and CEEV) argued that there are a whole variety of ways that pricing can be used to achieve these aims, legitimately. Among those, it was submitted is the option to raise excise duty on the sale of alcohol, which it was argued, would achieve at least the same health benefits as minimum unit pricing. In short, why not tax, given its more flexible approach and the opportunity to achieve the same health and societal benefits?
In contrast, the Lord Advocate, appearing on behalf of the Scottish Government set out, in stark terms, the precarious nature of Scotland’s relationship with “cheap alcohol”. With a higher per capita consumption of alcohol, and double the alcohol mortality rates of England and Wales, the Lord Advocate shone a light on the great harm experienced by Scotland’s excessive alcohol consumption levels, particularly in the most deprived parts of the country. The Lord Advocate’s position is that minimum alcohol pricing will deliver the greatest health benefits for hazardous and harmful drinkers in poverty, who are most at risk of alcohol related harm. With the Scottish Government submitting that the policy is anticipated to save 2,000 lives and result in 38,000 fewer alcohol related hospitalisations over twenty years, the Scottish Government submitted that any balancing exercise in terms of the impact on EU trade should be considered against that.
Looking forward: why is the forthcoming decision so significant?
This appeal is one of the most significant, and hotly anticipated, 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 ground breaking measures are required. The nature of the proposed measure – minimum pricing per unit – has however left the policy open to legal challenge as a potentially unlawful restriction on trade.
The appellants (Scotch Whisky Association, spiritsEUROPE and CEEV) are key stakeholders in the drinks sector, not only in Scotland, but across the European and wider international marketplaces.
Their arguments are based primarily on EU law. That has a wider significance; other jurisdictions across Europe are also considering introducing similar measures to tackle excessive alcohol consumption, and will be watching the outcome of the appeal closely. Should the appeal succeed, it seems unlikely that the rest of the UK and other EU jurisdictions will look to follow simple minimum pricing for alcohol as a policy tool.
The decision being handed down this week is one to watch. Depending on whether the Court determines the policy is justified, it has wide-ranging potential impact: not only for the drinks sector, but also for the future of public health policy in Scotland and beyond.