Local Government Lawyer Insight February 2018 LocalGovernmentLawyer 42 After a decade of debate, minimum pricing for alcohol will finally be introduced into the UK following a Supreme Court ruling in favour of the Scottish Government. By legislation passed in 2012 the Scottish Parliament introduced minimum pricing into law, to address the health and social consequences arising from the consumption of cheap alcohol. The price, to be set by secondary legislation, was to be 50p per unit. This would price a bottle of wine at £4.50 or so. But the aim was not to penalise moderate drinkers but to reduce consumption by dependent drinkers buying at the bottom of the market. The Scotch Whisky Association challenged the legislation, claiming that the measure was disproportionate under EU law. The challenge passed through the Scottish courts system to the European Court. The Court held that the legislation did breach the Treaty because it was an obstacle to the free movement of goods. The breach could be justified on grounds of the protection of health only if it is proportionate to the objective pursued. While minimum pricing is an appropriate means of promoting health both at population level and among hazardous drinker, it is not proportionate where it is possible for health to be protected equally effectively by tax measures. This is because tax increases can be absorbed by sellers, who remain free to sell at a price of their choosing. It therefore returned the case to the Scottish court to decide whether measures other than minimum pricing, such as tax measures, are as effective in protecting health. On the return of the case, the Scottish court, headed by the Lord President, Lord Carloway, held that alternative means of achieving the health protection aim would not be as effective as minimum pricing. He said that minimum pricing specifically targets cheap alcohol products, consumed by the most dependent drinkers. Taxation targets all products. Further, tax hikes can be absorbed by retailers. Minimum pricing targets the purchaser. So, the challenge was dismissed. The final tilt came in the Supreme Court. This failed. Lord Mance, with whose judgment the entire, unusually constituted, seven judge court agreed, held that the main point stands. Taxation would impose an unintended and unacceptable burden on sectors of the drinking population whose drinking habits and health do not represent a significant problem in societal terms. This contrasts with the drinking habits and health of those whose use and abuse of cheap alcohol it was the purpose of the legislation to target. It was open to the Scottish legislature to put great weight on combatting alcohol-related mortality and hospitalisation, despite the distortion of the market which would be its consequence. Further, the fact that the measure would be reviewed periodically was a significant factor in upholding its proportionality. The judgment has already been welcomed by the Welsh Government, which hopes to introduce a similar law in 2018. It remains to be seen how the government in Westminster will respond. There are powerful lobbies on either side. Nor should it be ruled out that individual authorities or regions will now be emboldened to pursue minimum pricing policies of their own, particularly given the disparities in relation to alcohol related health issues across the nation. It is now all to play for. Philip Kolvin QC is Head of Cornerstone Barristers, specialising in licensing and regulatory law. Philip Kolvin looks at the factors behind the Supreme Court’s decision to allow the imposition of a minimum pricing regime for alcohol. Super strength judgment