Scotch Whisky Association v. The Lord Advocate [2017] UKSC 76.

Philip Simpson, Q.C., of Old Square Tax Chambers, successfully represented the Advocate General in a Supreme Court challenge by the Scotch Whisky Association (SWA) to the Scottish Government’s Alcohol (Minimum Pricing) (Scotland) Act 2012.  The appellants presented a petition for judicial review challenging the lawfulness of the Act and arguing that minimum unit pricing was disproportionate under EU law, breached world trade law, and breached the Treaty and Act of Union by which England and Scotland united in 1707. The factual basis of the challenge was, in summary, that the same effect could be achieved by increasing excise duties, whether alone or in combination with other measures.

By the time the case reached the Supreme Court, the issues had narrowed to those arising under European law. Seven judges sat to hear the appeal. While not seeking any particular disposal of the appeal, the Advocate General made a number of submissions as to the law, all of which were accepted. Overall, the Supreme Court found that the 2012 Act does not breach EU law and that minimum pricing is a proportionate means of achieving a legitimate aim. Scottish Ministers are now expected to make Scotland the first country in the world to establish a minimum price per unit of alcohol, possibly early next year.

Philip said: ‘This is an important decision in that it confirms that where a national legislative measure is challenged on the basis that it breaches a fundamental freedom of EU law, a court deciding the question of proportionality must ask whether it was reasonable for the national legislature to conclude that (i) the measure being challenged was suitable to achieve the end pursued, and (ii) there was no less restrictive measure available.

Important in the present case were the uncertainty of how manufacturers, wholesalers and retailers would react to the provision, the requirement for its effects to be assessed after five years, and the fact that, following that assessment, the provision would automatically terminate after six years unless renewed by the Scottish Parliament within that time.’

A copy of the Judgment can be seen here.