Public Law

It’s a long post, this one. You might want to fix a small libation before you embark on it.

The Alcohol etc. (Scotland) Bill passed its final stage in the Scottish Parliament yesterday. The headlines have focused on the failure of the Scottish Government to save its flagship minimum pricing policy, but the Bill as passed still imposes some significant new restrictions on the licensed trade. We’ve always had doubts about whether minimum pricing would have been lawful and, though that policy is now dead, the key surviving measures could themselves be vulnerable to legal challenge.

The key surviving policies are a ban on ‘multi-buy’ discounts (e.g. 3 for the price of 2), and the imposition of a “social responsibility levy” to make licensed premises pay for ‘societal’ costs attributable to their business. Both policies raise ‘interesting issues’ and businesses who object to having these policies imposed on them may have good grounds for challenging them in Court.

We’ve been banging on for a while now about the potential legal problems with the Scottish Government’s alcohol policies. For obvious reasons, we’d focused on minimum pricing, and whether it was outside the legislative competence of the Scottish Parliament because it related to the regulation of the sale of goods to consumers, an area reserved to Westminster. I won’t repeat that argument again here (you can click on the links if you want to know the details), but there seems to be no obvious reason to treat the regulation of ‘multi-buy’ pricing any differently from the regulation of per-unit pricing. We think the ban on ‘multi-buy’ promotions could well relate to the regulation of the sale of goods to consumers, in which case it would not be legally valid.

That view was recently reinforced somewhat (at least indirectly) in another case about the validity of Scottish Parliamentary legislation. Imperial Tobacco challenged the impending ban on the display of cigarettes in shops, arguing that this was the regulation of the sale of goods to consumers. Imperial lost the case on the basis that the display of goods did not fall within the scope of that reservation. However, the Scottish Government apparently did concede that the reservation would cover “regulation of the terms… on which goods and services were sold to consumers” (see paragraphs 15, 20, 28 and 35 of Lord Bracadale’s decision). Price is surely a key component of the terms of any sale, so it seems to us that regulating the price of goods, even if only on a ‘multi-buy’ basis, would fall within the reservation.

The Bill’s other key measure also has a question mark over it. The Scotland Act reserves all taxation matters to Westminster, apart from “local taxes to fund local authority expenditure”. It’s at least arguable that the “social responsibility levy” is actually a tax (regardless of what it’s called) and that it would have difficulty qualifying as a “local” tax when the Bill empowers the Scottish Government to impose it directly. The Bill does allow the Government to delegate the levy to local authorities, and if it’s dealt with in that way then it may qualify as a “local” measure.

Please do comment below if you think we’re talking rubbish, or indeed if you feel a burning desire to agree with us. Don’t hold back with the praise – the more effusive the better. Please do, however, keep the criticism civil. This isn’t a pub you know.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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