Blog: Guessing game – minimum pricing’s effect on alcohol sales

Audrey Ferrie

Audrey Ferrie offers post-case analysis of the recent ruling in favour of a minimum pricing policy for alcohol in Scotland.

There is no little irony in that this ruling in favour of the Scottish government is partly down to the curious situation that it is the UK which is the EU member state and not Scotland.

What is clear is that this is a comprehensive win for the First Minister’s drive to challenge Scotland’s damning alcohol-related health statistics by means of introducing minimum pricing (MP) on alcohol and the Scotch Whisky Association (SWA) and allied parties must doubt the merits of seeking leave to appeal to the Supreme Court.

The SWA argued there was an alternative measure to minimum pricing – taxation – but the Scottish government countered that a tax would not be as effective and had to demonstrate MP was necessary and proportionate.

The judgment was unequivocal, stating: “at the risk of unnecessary repetition, it is primarily for the State to determine the level of protection which it wishes to afford to its citizen’s life and health and the means by which that level can be achieved”.

The Court of Session ruling also highlighted the anomaly that it is only the UK government – the EU member state – as opposed to the Scottish government, which has the reserved power to impose taxation: “the Scottish government requires to organise itself accordingly, but it does produce a curious anomaly in the context of a legal argument that increasing tax is a viable alternative, when the political reality is that it is clearly not.”

The ruling also pointed out there that it is something of a guessing game as to what impact MP will have on alcohol sales. The judges said that “it is likely to have little impact on the on-trade but it is largely impossible to gauge what impact it will have on the retail market … the only way in which minimum pricing can be tested is by trialling it”, which is what the Scottish government is seeking to do.

A so-called “sunset clause” built in to the legislation means MP will have to be reviewed after six years and within a period of five years the government has to produce a report on the impact it is having.

In rehearsing the history of the legislation and background to the case the court does say it took a step back to look at the whole purpose of the legislation and to consider Scotland’s relationship with alcohol. The judges conceded that in some comedic settings this reputation can be quite amusing, but the fact is there are issues with excessive alcohol consumption in Scotland and this partly justifies the stance of the government.

Post-Brexit and over the course of next few years EU law may no longer be relevant and the appellants may feel somewhat aggrieved that the government’s case rested partly on the “tax issue” but that would be to discount one subheading in an overall robust judgement which found against them.

The court has produced a thorough and balanced judgement which supports the judge at first instance on every point. The appeal judges found that the Lord Ordinary applied the law accurately to the facts which he found demonstrated by the materials before him. The Scottish government met the test that minimum pricing has a legitimate aim, which is the proportionate protection of life and health, and I find it difficult to see where there would be grounds for appeal.

The SWA would need leave from the Inner House to appeal to the Supreme Court but if the Inner House declines to grant leave it is possible to apply direct to the Supreme Court on a point of law of general public importance. However, I find it difficult to envisage the Supreme Court overturning two judgements which are viewed as supportive of protecting the health of Scottish citizens.