Imperial Tobacco Ltd, Re Judicial Review [2010] ScotCS CSOH_134 (30 September 2010)

Imperial Tobacco Ltd, Re Judicial Review [2010] ScotCS CSOH_134 (30 September 2010)

Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 do not relate to the reserved matter of regulation of the sale and supply of goods and services to consumers under section C7(a) of Schedule 5 to the Scotland Act 1998, as their true purpose is the improvement of public health, particularly among children and young persons, which is not reserved. The provisions do not regulate the terms of sale or supply but prohibit display and vending machine sales for health reasons. Any effect on reserved matters is incidental. The challenges based on modification of Scots criminal law and the Acts of Union also fail.

Citation
[2010] ScotCS CSOH_134
Parties
Petitioner: Imperial Tobacco Limited; Respondent: Lord Advocate
Jurisdiction
Scotland
Judgment Date
30 September 2010
Procedural Posture
Judicial Review / First Instance (outer House, Court of Session)
Outcome
Petition refused
Legal Topics
Legislative Competence, Reserved Matters, Public Health Legislation, Consumer Protection, Interpretation of Statutes
Constitutional Law Administrative Law Devolution Law Legislative Competence Reserved Matters Public Health Legislation Consumer Protection Interpretation of Statutes

Case Brief

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Parties

Imperial Tobacco Limited

Petitioner

Lord Advocate

Respondent

Procedural Posture

Judicial Review / First Instance (outer House, Court of Session)

Legal Issues

  1. 1 Whether sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 are outside the legislative competence of the Scottish Parliament as relating to reserved matters under the Scotland Act 1998
  2. 2 Whether the provisions modify Scots criminal law as it applies to reserved matters
  3. 3 Whether the provisions unlawfully modify Article VI of the Acts of Union 1706 and 1707

Ratio Decidendi

Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 do not relate to the reserved matter of regulation of the sale and supply of goods and services to consumers under section C7(a) of Schedule 5 to the Scotland Act 1998, as their true purpose is the improvement of public health, particularly among children and young persons, which is not reserved. The provisions do not regulate the terms of sale or supply but prohibit display and vending machine sales for health reasons. Any effect on reserved matters is incidental. The challenges based on modification of Scots criminal law and the Acts of Union also fail.

Court Disposition

Petition refused

Orders

  • Declarator that sections 1 and 9 of the 2010 Act are outside legislative competence refused
  • Reduction of sections 1 and 9 of the 2010 Act refused