Public Law

“LEGISLATION CONTAINS LOOPHOLES, LEADS TO UNINTENDED CONSEQUENCES” is up there with “DOG BITES MAN, WORLD IN SHOCK” and “EXCLUSIVE: URSINES PREFER ARBOREAL TOILETRY ARRANGEMENTS” in the surprising headline stakes. But it seems that retailers will be able to circumvent the prohibition in the Alcohol etc. (Scotland) Act 2010 on BOGOF (Buy One Get One Free) and other ‘multi-buy’ offers. That prohibition comes into force tomorrow.

They will reportedly do that in two ways. The first is by reducing the price of individual products in Scotland to match the ‘bulk buy’ prices available in the rest of the UK. That is, if £5 bottles of wine are 3 for £12 in England, the individual bottles in Scotland will be £4 each, which would actually make alcohol even cheaper and thus make the prohibition completely counter-productive. The second route is via internet sales which, if they are shipped from premises in England, are outside the Act’s (and the Scottish Parliament’s) jurisdiction.

Our views on minimum pricing have been pretty well-publicised. However, we have also commented on the policies that actually made it into the Alcohol Act, including the ban on BOGOF promotions. We believe legislation that restricts the price of goods (whether on an individual or a bundled basis) relates to the regulation of the sale of goods to consumers, an area reserved to the UK Parliament by the Scotland Act (at para C7 of Schedule 5). So not only are there ways around the prohibition, it may well be unenforceable in any event.

My favourite part of today’s Scotsman report is a quote from a Scottish Government spokesman who, no doubt keen to add to the gaiety of the nation, suggested that internet sales of alcohol was “an area that we will watch closely to see if further action is necessary”. Since the internet is also reserved (by para C10 of Schedule 5 to the Scotland Act), and the Scotland Act does not allow the Scottish Parliament to make laws applying outside of Scotland (e.g. to internet retailers based in England or elsewhere), it looks like there could be a perfect storm of legislative competence issues on the horizon.

Charles Livingstone
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